
    Orville S. Corey vs. Northern Pacific Railroad Company.
    November 29, 1884.
    Contributory Negligence. — Evidence considered, and held, that the question of contributory negligence was for the jury.
    Appeal by defendant from an order of the district court for Clay county, Stearns, J., presiding, refusing a new trial.
    
      Echuard H. Ozmun, for appellant.
    
      Marshall A. Spooner and Frank D. Larrahee, for respondent.
   Gilfillan, C. J.

In the village of Glyndon there is a public highway called Park avenue, running north and south. It is crossed by the main track and a side track of defendant, running east and west, the side track being about 30 feet south from the main track. Along the side of the highway, between the two tracks, was a ditch about four feet deep. On tbe night of December 17, 1882, the defendant’s employes left a box car on the side track, across the highway, so as to obstruct it, except for a space of about four feet between the end of the car and the ditch. At 6 o’clock the next morning, the driver of plaintiff’s horses, attached to a sleigh, was driving along the highway from north to south, and reached and crossed the main track just before a train on that track crossed the highway. In approaching on the highway the main track from the north, the view in the direction from which the train came was somewhat obstructed by an old depot or warehouse, though, had he been looking in that direction, he might have seen the train. He did not see the box car till he was on the main track. After crossing the main track, thinking it not safe to stand with the team between that track, with the train passing on it, and the box car, he attempted to pass on by driving around the end of the box car, — he not knowing, or not recollecting, that the ditch was beside the highway, and it being filled even full with snow, so that in the darkness he did not see it, — and one of the horses fell into the ditch and was injured. On these facts it was for the jury to say whether there was negligence on the part of the driver contributing to. the injury.

Order affirmed.  