
    Sivert Larson vs. Northern Pacific Railroad Company.
    December 18, 1884.
    Appeal — Failure to Return Map with Case. — Where witnesses in testifying refer to a map used on the trial, and without which their testimony is unintelligible, if an appellant desires this court to consider the weight of such evidence, the map should be returned, with the places and objects to which the witnesses referred identified, so as to make the evidence intelligible.
    Yerdict held to be justified by the evidence.
    Appeal by defendant from an order of the district court for Becker county, Stearns, J., presiding, refusing a new trial.
    
      Edward H. Ozmun, for appellant.
    
      Mosness d Douglas, for respondent.
   Mitchell, J.

Action for damages to plaintiff’s team and wagon at a railroad crossing, through the alleged negligence of defendant. The error assigned is that the verdict is not justified by the evidence, for the reasons — -first, that defendant was not guilty of any negligence; second, that plaintiff’s servant in charge of the team was guilty of contributory negligence. In our opinion, there was sufficient evidence to warrant the jury in finding that defendant was negligent. Our judgment also is that we would not by any means be justified in holding, as a matter of law, that it affirmatively appeared that the driver was negligent. In this view of the case, it would subserve no useful purpose to discuss the evidence.

There is one fact which of itself would be a sufficient reason why the question of contributory negligence should not be considered. Some material testimony bearing upon that point was given with reference to a map of the locus in quo, which was presented to the witnesses on the trial, but which is not contained in the return, and without which the evidence is unintelligible. We cannot say what weight this evidence might have had; hence the case stands practically as if all the evidence was not here. Where witnesses refer to a map in giving their testimony, whenever necessary to an understanding of the evidence, the map should be returned with the places or objects to which they referred so identified as to make their testimony intelligible.

Order affirmed.  