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 brought within the warehouse the lighted lantern and proceeded with the same to the gasoline barrel without the notice or knowledge of Pierce, and should otherwise find that Pierce was not guilty of contributory negligence, such finding would support the actionable negligence charged against the defendant conductor.

Accordingly it is ordered that the judgment of the trial court affecting the Director General be affirmed, with costs; otherwise the judgment is reversed, and a new trial granted, with costs.

Christianson, Robinson, and Birdzell, JJ., concur.

Grace, C. J., concurs in the result.

J. E. BURKE, Respondent, v. MINNEKOTA ELEVATOR COMPANY, Appellant.

(186 N. W. 948)

’Dismissal and non-suit — refusal to dismiss for failure to bring action to trial within five years held not error.'

1. In an action for conversion of wheat in 1909 where suit was instituted in January, 1914, and was not brought to trial until January, 1920, after a change of venue had been taken by the defendant, in December, 1918, from Ward county to Pierce county, it is held, for reasons stated in the opinion, that the trial court did not err in refusing to dismiss the action for failure to bring the same to trial within five years, pursuant to Section 7598 C. L. 1913.

Trover and conversion — verdict for conversion of wheat sustained.

2. In such action, it is held, for reasons stated in the opinion, that the special verdict of the jury finds support in the evidence.

Interest — judgment for interest from date of conversion to date of verdict, where jury did not find plaintiff entitled to interest, held erroneous.

3. In such action, where the conversion of wheat occurred in 1909 and a jury, by its special verdict, allowed the market price therefor existing at the time of such conversion without any finding that the plaintiff was entitled to interest upon such amount from the date of conversion, it is held, for reasons stated in the opinion, that the trial court erred, in its order for judgment, permitting plaintiff to recover