Page:North Dakota Reports (vol. 48).pdf/817

 lantern was sitting about six or seven feet away. Pierce used a funnel too big for the can. The conductor put one hand on the gasoline can and the other on the funnel. The gasoline spilled over the side. While the can was being filled, the flames started. Nothing the conductor did in the oil house had any connection with the Soo Railway. The lantern was not a railroad lantern. He bought and paid for it. It had no mark of the Soo thereupon, unless, perhaps, upon the globe. He did not use gasoline in this lantern. There was no gasoline used on the train, for lighting or heating, by him or any of the employees. He used this lantern for railroad purposes, to give signals. Another brakeman testified that the conductor carried an Adlake lantern; that no gasoline was used en the train for any purpose. Another brakeman testified that he saw a red gasoline can upon the train that morning which the conductor said belonged to him; that he had bought gasoline from Pierce previously, received it in an empty milk can, and took it home with him in the back of the engine tank. A truck driver for the oil company testified that when the fire started he was in a truck shed across the street. He saw the conductor go up to the platform and set down his can and lantern in front of the door. He saw Pierce come out in front, pick up the can and lantern, and go within. In the evening, after the fire, he heard Pierce make the statement that he grabbed up the lantern and the can and started into the warehouse. Another witness testified that he bought the Adlake lantern for the conductor, and that it was customary for trainmen to provide themselves with lanterns. The plaintiff offer- ed in evidence the burned remnants of an Adlake lantern. They offer- ed to prove that Adlake lanterns similar to such lantern introduced in evidence, and of the kind used by conductors and trainmen in service, will burn either gasoline or kerosene successfully and perfectly and are used in such train service burning gasoline successfully and perfectly— all to establish that this Adlake lantern used by the conductor at the time of the fire would burn perfectly and successfully on gasoline fuel or oil, and that the conductor was purchasing the gasoline in question tor the Adlake lantern in the performance of his railroad duties as train conductor, and as corroborative of the statement made by the conductor at the time of the purchase that he wanted the gasoline for use in his lantern. This offer was rejected.

The plaintiffs contend that the trial court erred in directing the verdict and in refusing the offer of proof; that the record discloses ques-