Page:North Dakota Reports (vol. 3).pdf/428

 the court, and not a question to submit to a jury. The defendant offered testimony to rebut and overcome the technical case of presumptive or legal negligence which the statute creates for plaintiff's benefit. In our opinion, the testimony was ample for this purpose, and went further, and demonstrated that the defendant was guilty of no negligence whatever in the premises. The testimony of the engineer, conductor, and fireman is not contradicted as to any material fact having reference to the degree of care used by the engineer and fireman in keeping a lookout, or in their strenuous efforts to avoid a collision after the peril to the horse and the train were discovered. Counsel for the respondent points to the discrepancy in the testimony of the fireman as to the distance of the horse from the engine at the time the air brakes were applied to stop the train. True, the fireman’s ideas of distance between the engine and horse at that time, when expressed in feet, were confusing, and apparently conflicting with the engineer's testimony upon the point. But it is clear that the conflict was apparent, and not real. The fireman said and reiterated, in substance, that the horse was not the length of the train away from the engine when the brakes were applied, and that the distance was about the length of two coaches. In this he agreed substantially with the engineer, and, as we have said, there is no evidence in the case tending to show that the distance was either greater or less than that testified to by both the trainmen. Negligence is a fact, and where, as in this case, it constitutes the gist of the action, it must be made out affirmatively by the plaintiff. In the case at bar we find no proof whatever of actual negligence, and hence we are of the opinion that the court erred in refusing to direct a verdict for the defendant. A new trial will be directed. All concur.

(56 N. W. Rep. 139.)