Page:North Dakota Reports (vol. 48).pdf/818

 tions of fact for the jury as to whether it was negligence for the conductor to take his lighted lantern within the oil station, and as to whether the conductor, while so doing, was acting within the scope of his railway employment, and also whether Pierce was guilty of contributory negligence.

Decision.

We are of the opinion that the record fails to disclose any evidence sufficient to form a question of fact for the jury that the conductor was acting within the scope of his employment or for any railway purpose when he purchased, or sought to purchase the gasoline in question. It may be conceded that there is evidence in the record sufficient to establish in connection with the offer of proof, that the conductor, at the time of the fire, was on duty and carried the lantern in question for use in connection with his duties and for railway purposes, and that, furthermore, he brought to the oil station a gasoline can labeled “Soo Line,” and brought within the oil station both this lantern, lighted, and the gasoline can, and, furthermore, that an Adlake lantern may perfectly and successfully burn gasoline as fuel. Nevertheless the admission of the conductor, if so found, or if true, that he wanted to purchase gasoline for his lantern, is wholly insufficient as evidence to establish a finding that this Adlake lantern carried by the conductor burned, or ever burned, gasoline as a fuel while used by this conductor, or that the conductor sought to purchase such gasoline for any railway purpose. This is particularly so in view of the direct evidence offered in the record that the gasoline was purchased for private use. The fact that an Adlake lantern, not distinctly shown to be exactly the same as that used by the conductor, burns gasoline successfully and perfectly is not probative evidence to establish that this conductor did burn gasoline in his lantern, or that gasoline was ever used in this lantern by this conductor for a railway purpose. Likewise, in the absence of proof of the use of gasoline upon the train for any railway purpose, the evidence of purchases of kerosene, cylinder oil, or even gasoline in this oi] station by trainmen had no probative force in establishing the use of gasoline by this conductor in his railroad lantern. However, we are of the opinion that the record discloses questions of fact for the determination by a jury concerning acts of negligence by the conductor Pike. If the jury should find, upon the evidence, that this conductor