Page:North Dakota Reports (vol. 2).pdf/481

 and explained in the foregoing cases. But under that statute and the decisions it is clear that the assignments of error which we have been considering are not well taken. It is urged that the iastructions did not limit the time in which ordinary care was incumbent upon defendant to the time after the animal was seen. That could not be error in this case. The testimony was all directed to the conduct of defendant's employes after the horse was seen.

The appellant segregates and assigns error upon the following words in the charge: ‘The plaintiff in the case offered farther proof, over and beyond the presumption of law, showing negligence on the part of the company and those in its employ.” This language is unfortunate, and the instructions would have been better without it. It is one of those oversights which are well-nigh inseperable from the haste of jury trial. Immediately following this language the court said: ‘Now, you are instructed that the liability of this defendant, if it is liable in this case, depends entirely upon its negligence. It is not liable simply because it may have killed the horse; and if you find that in killing this animal the railroad company was not negligent—was not guilty—or, rather, did not fail to exercise that care and prudence which a prudent man would under the circumstances, then your verdict must be for defendant. If, on the other hand, you shall find from all the evidence in the case that in the killing of this animal the persons in charge of the train at the time were guilty of negligence, that is, they did not exercise that care and prudence which a careful man should have exercised under the circumstances, and that the injury to the animal was the result of want of care on the part of those who had the train in charge, then,” etc. Read with the context, we are clear that the court had no thought of passing upon the weight of testimony, but simply meant that the plaintiff introduced further testimony for the purpose of showing negligence, and we think the jury must have so understood it. We are not inclined to relax in the least the rule that makes the jurors the sole arbiters of the facts, yet, in a case where it is so apparent as in this that exact justice has been done, we are not warranted in reversing the case for a mere oversight of