Page:North Dakota Reports (vol. 1).pdf/567

 started by defendant's negligence, and where the complaint charges negligence both as to the machinery and appliances in use upon the train which threw out the fire, and as to the management of such machinery and appliances, held, the primary fact that defendant’s train threw out the fire in question being shown, such fact of itself will operate to make out a prima facie, case of negligence. Such fact creates a disputable presumption of defendant's negligence. Johnson v. N. P. R. R. Co., 354.

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Held, further, that the prima facie case of negligence cannot be rebutted by the defendant by showing merely that the machinery and appliances were of a proper character, and were at the time in good condition, without showing the further fact that the same were handled with due care at the time the fire was thrown out. Id.

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The trial court charged the jury as follows: “The care must be proportionate to the danger. A hig er 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. Id.

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Where plaintiff is damaged by prairie fire set by defendant, the fact that plaintiff had no fire-break to protect his property is not negligence per se; but in such case the question whether or not such omission would constitute negligence, would be a question of fact for the jury, under proper instructions. Such a question would usually be one of pure fact. Gram v. N. P. R. R. Co., 252.

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1. The negligence of a foreman of a gang in failing to block a pile which was shoved against plaintiff, injuring him, because it was not blocked, is the negligence of a fellow-servant, although the foreman had authority to employ and discharge plaintiff, and the plaintiff was under his superintendence and control in doing the work in the performance of which he was injured. Ell v. N. P. R. R. Co., 336.

2. Whether a negligent servant is the fellow-servant of an employe who is injured by the carelessness of the former depends, not upon the relative ranks of the two servants, but upon the character of the work, the negligence with respect to which resulted in the injury. Id.

3. The negligent performance or omission to perform a duty which the master owes to his employes is at common law the negligence of the master, whatever the grade of the servant who is in that respect careless. The negligence of a servant engaged in the same general business with the injured servant is the negligence of a fellow-servant, whatever position the former occupies with respect to the latter, as to all acts which pertain to the duties of a mere servant, as contradistinguished from the duties of the master to his employes. Id.

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1. In actions for damages for negligence, interest may be awarded or withheld in the discretion of the jury. Id.

2. 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, inter-