Page:North Dakota Reports (vol. 3).pdf/134

 the rule required of him under the evidence on this appeal. We are left in dark as to the precise difficulty with the drawbar, but, if the testimony of the plaintiff is entitled to credence,—and that is a question for the jury,—then there is evidence to warrant a finding that there was something wrong with some part of this coupling apparatus. The plaintiff swore that, when the engine struck the car, it pushed back the drawhead of the car almost, if not quite flush with the end sill. He said: “When the engine struck the draft iron it sunk in. It sunk in under the car. It might have been a foot. It could not have been more than flush with the end of the car, or what would be the car frame.” That there should be such play to the drawbar from so slight an impact of the engine against it is certainly evidence from which the jury might have said that there was some defect, which a proper inspection of the car would have disclosed. It is urged that there is evidence that the car was inspected. Assuming this to be so, still it may be that the defendant had not discharged its full duty to plaintiff. It owed him the duty of making a careful inspection, and it was for the jury to say whether the sinking in of this draw- head flush with the end of the car, should they believe plaintiff's testimony in this particular, was not evidence that this inspection, if made at all, was not made in a proper manner. If plaintiff's testimony is true, the drawbar, instead of having a play of from 1 to 4 inches, had a play of 10 or 12 inches,—the full length it projected beyond the car. It seems to be conceded that the drawbar could not have sunk in so far had there been no defect in the apparatus. It is true that there was evidence tending to show that everything was in proper order, but this conflict it is the province of a jury to settle. On the former appeal we said: “To fail to discover, under this circumstances, that these draw- bars [i. e. those of the engine and of the car] were only about one-third the usual length, must be negligence,” etc. It now appears that the drawbar on the engine was 8 inches long, and that, that on the car was 10 or 12 inches long. We cannot, under these new facts, say, as a matter of law, that the plaintiff was negligent