Page:North Dakota Reports (vol. 3).pdf/133

There is a marked difference between the evidence on this and on the former trial so far as the length of the drawbar of this car and the circumstances immediately surrounding the accident are concerned. On the former appeal we held that plaintiff was guilty of contributory negligence, as a matter of law, because the evidence disclosed the fact that this drawbar projected less than five inches from the end of the car before the slack was taken up. We held that, as the plaintiff slowly approached the car, he could not have failed to have noticed that the drawbar was extremely short had he used proper care; but it now appears from some of the evidence that this drawbar projected 10 or 12 inches beyond the end of the car. We do not think that it can be said, under such evidence, that as a matter of law, the plaintiff was negligent in not apprehending peril; nor is it evident that plaintiff would have been injured at all had the play of this drawbar been only normal; i. e. from one to four inches. The engine was moving so slowly that its momentum when it struck the car must have been very slight. Shields, the foreman, says that the engine barely touched the car when they came together. The amount of slack taken up under these circumstances would be but little if everything was in proper condition. We think that the plaintiff had a right to assume that everything was all right, under the circumstances. It is true that, under the rule referred to in the opinion on the former appeal, and which was introduced in evidence on the second trial, the plaintiff was under obligation to look at the coupling apparatus to see if it was all right before making the coupling; but this does not involve a critical examination of the apparatus. The plaintiff testified that, as he approached the car, he looked at the drawbar, and did not see anything the matter with it. Indeed, it is undisputed that the drawbar and drawhead were apparently in good order; and if, there was anything the matter with them it is fair to assume that it was some obscure defect as in the spring, the follower plate, or some other similar place, the discovery of which would have required a very careful examination. It was for the jury to say whether plaintiff did all