place within the reservoir. If the ice upon the reservoir had been uniformly thick, like upon the creek without, a foot in thickness, and if there had been no open nor dangerous water hole within, little danger would have existed if the cattle should wander through such openings and upon the reservoir.
The unguarded openings and the open water space, concerning both of which the plaintiffs neither were informed nor knew, constituted the menace of danger and of injury. Reasonable men might draw different conclusions from the evidence as to whether the plaintiffs would have known or investigated concerning the reservoir or should have more closely attended the cattle. Contributory negligence may not be charged to the plaintiffs because they accepted the facilities offered by the carrier. Lackland v. Ry. Co., 101 Mo. App. 420, 74 S. W. 505. The question of contributory negligence therefore was primarily one for the consideration of the jury, and its findings should not be disturbed. Jackson v. Grand Forks, 24 N. D. 6o1, 617, 140 N. W. 718, 45 L. R. A. (N. S.) 75; Haugo v. G. N. Ry., 27 N. D. 268, 273, 145 N. W. 1053; Overpeck v. Rapid City, 14 S. D. 507, 85 N. W. 990, 992.
The order is reversed, and judgment ordered upon the verdict, with costs.
Grace, C. J., and Robinson, Christianson, and Birdzell, JJ., concur.
JOHN PETERSON, Respondent, v. ISAAC OGLAND and NELS OGLAND, Appellants.
(184 N. W. 981.)
Attachment—should be dissolved where grounds are denied by defendant and not sustained by plaintiff.
Where, on a motion for dissolution of an attachment, the existence of the grounds of the attachment is properly denied by the defendant, the burden is placed upon plaintiff to show the existence of such grounds; and where he fails to sustain such burden, the attachment should be dissolved.
