Page:North Dakota Reports (vol. 1).pdf/379

 '''5. Same; Degree of Care Required.'''

The trial court charged the jury as follows: "The care must be proportionate to the danger. A higher degree of care is required when the wind is high than when it is calm, and where combustible matter is very dry than when it is wet." Held, that under the evidence said instruction was erroneous.

6. Erroneous Instruction in @his Case Held Not Prejudicial.

Held, further, that such error does not constitute reversible error, for the reason that the plaintiff conclusively established his right to recover on grounds wholly different from and independent of the subject-matter of the erroneous instruction. Such instruction did not materially affect the substantial rights of the defendant, and hence it is not prejudicial error.

7. Negligence—Measure of Damages.

In an action for damages to property caused by negligence, the measure of damages is controlled by § 4578, Comp. Laws, which reads as follows: "In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud and malice, interest may be granted in the discretion of the jury." Under this section, the following charge held to be prejudicial error: "If you find from the evidence that the plaintiffs property was destroyed by or through negligence of the defendant, then you must assess the damages of the plaintiff in such a sum as he has proven to you he has sustained, with interest at seven per cent. per annum from the date of loss to plaintiff." The instruction directly violates the statute, in this: The discretion vested by the statute in the jury to either grant or withhold interest is taken away from the jury, and exercised by the trial court. For this error a new trial will be granted, unless plaintiff consents to a modification of the judgment by deducting interest upon the value of the property destroyed; such value not being contradicted by testimony.

PPEAL from district court, Stutsman county; Hon., Judge.

John S. Watson for appellant: The degree of care which a railroad is bound to exercise is not dependent on the weather: Mich. Cen. R. R. Co. v. Anderson; and the instruction quoted above in paragraph 5 of the syllabus is erroneous. If there is error in the charge in respect to any particular point, judgment cannot be affirmed on other grounds, since it cannot be said that the verdict was not the result of the erroneous instruction: