Page:North Dakota Reports (vol. 2).pdf/468

 Godney, 24 Pac. Rep. 464; Railroad Co. v. Gunn, 8 So. Rep. 648, Even where the facts are undisputed, and different minds might draw different conclusions from the evidence, it is a question for the jury. Lasky v. Railroad Co., 22 Atl. Rep. 367; Williams v. Railroad Co., 14 N. W. Rep. 97; Railroad Oo. v. Chambliss, 15 8. W. Rep. 469.

The opinion of the court was delivered by

Bartholomew, J. We quote from the statement of facts in appellant’s brief. “The action was brought in justice court to recover damages alleged to have been done to plaintiff's horse by a passenger train of the defendant. Plaintiff recovered, and on appeal the cause was tried de novo in the district court, and averdict rendered for plaintiff. A motion for new trial was made and overruled, and defendant appealed from the order refusing a new trial. The material allegations of plaintiff's complaint are the fourth and fifth paragraphs, and are as follows: ’That on said last mentioned day plaintiff's said horse casually, and without the fault of the said plaintiff, at the station of Fairmount, in said county and territory, strayed in and upon the right of way of said railroad company; that said company, by its agents, servants, and employes, so negligently and carelessly handled and run its said cars that the same was, at said time and place, run into and over the said horse.’ The facts, as shown by the testimony, are as follows: That at the time in question the defendant was running its regular passenger trein on schedule time from Fairmount west. The train was in'charge of an experienced engineer, who had been running on the read nearly three years. The engine was equipped with all the modern appliances for safety that were at that time in use upon passenger engines, and they were all in good order. The train consisted of the engine and two cars, and was not at any time run at more than the ordinary speed of twenty miles an hour. At and before the time of the accident the engineer wes at his position on the right-hand side of the engine, and the fireman on the left-hand side, keeping a lookout. It was necessary for the engineer to remain on the right-hand side of the engine, and the duty of the fireman to keev a lookout on the left.