Page:North Dakota Reports (vol. 1).pdf/384

 lature. Until the contrary is alleged and proven, this court will hold in a case where a bill or statement is allowed and signed, or a notice of intention after the time for doing so has expired, that the district court acted upon good cause shown. Abuse of discretion will not be inferred from the mere fact that the record is irregular in not showing the grounds upon which the court proceeded. The motion to strike the bill from the record must therefore be denied.

Proceeding to the merits, we remark, first, that we shall not have occasion to discuss a number of the questions which are presented by the record, for the reason that the same questions were considered and determined by this court in the case of Gram v. Railroad Co., reported in 46 N. W. Bep. 973, (ante p. 252.) The two cases were represented by the same attorneys, representing the same parties; the issues made by the pleadings in the two actions are identical; and the damage was done in both cases by one and the same fire, originating at the same time and place, and in the same manner. The evidence upon several vital features of the two cases come from the same witnesses and tended to prove the same state of facts in both cases. We shall therefore, so far as the two cases rest upon the same facts, apply the principles to this case which were applied in the former, and not discuss them here. The acts of negligence charged which are material were as follows: First, faulty construction of the engine and its negligent and unskillful management, whereby fire which did the injury was negligently allowed to escape; second, the existence, by sufferance of the defendant, of large quantities of grass and weeds and other dry and combustible material upon the right of way at and near the point where the fire started. The first instruction of the court to the jury excepted to by the defendant was as follows: “An engine may be properly constructed and supplied with the necessary appliances, and yet cause fires through negligence in its management, in which case the defendant would be liable as for the running of defective engines.” In support of this assignment of error, counsel, in his brief, uses the following language: “This instruction was clearly erroneous. It is true that the plaintiff alleged in his complaint that the engine in question