David Josiah Brewer

“ We are of opinion that the deceased was guilty of contributory negligence, such as to bar any recovery. It is true that questions of negligence and contributory negligence are ordinarily questions of fact to be passed upon by a jury ”

“ Such omission has been again and again, both as to travelers on the highway and employes on the road, affirmed to be negligence. The track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can never be assumed that cars are not approaching on a track, or that there is no danger therefrom. It may be, as is urged, that his motive was to assist in getting the hand car out of the way of the section moving on the siding. ”

“ As, since the decision of the supreme court of the territory, that territory has been admitted into the Union as the two states of North Dakota and South Dakota, and as the counties of the trial are in the state of South Dakota, the mandate will go to the supreme court of that state. ”