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 permitted combustible materials to grow and accumulate upon its right of way and that engines used upon the line of said railroad were furnished with the best known appliances to prevent the escape of fire, and that such appliances were upon September 21, 1885, in good order and that the fire was accidentlyaccidentally [sic] and not negligently communicated to the combustible material on its right of way, and from there to plaintiff's property, the defendant is not liable in this action.” The request was refused. Held, that such refusal was not error. Due care in providing appliances, and in operating a train, does not relieve a railroad company from liability for a loss by fire which originated from sparks accidentally thrown out upon inflammable material negligently permitted to accumulate and remain upon the right of way. Due care in one direction does not excuse negligence in another. Id.

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1. Respondent, after the admission of North Dakota into the federal Union, argued the appeal in this case in the supreme court of the state, applied for a rehearing after defeat, and after securing a rehearing applied for and obtained a continuance. Held, he could not thereafter obtain a transfer of the case to the federal court on the ground of diverse citizenship, under the provisions of the enabling act. Gull River Lumber Co. v. School Dist. No. 39, 408.

2. Under § 23 of the Omnibus Bill, the federal court which might have had jurisdiction of a case under the laws of the United States, had such federal court existed at the time of the commencement of such action, becomes, upon the written request of either party for a