an order granting a new trial, he appeals. Affirmed. John H. Fraine and Cochrane & Corliss, for appellant. De Puy & De Puy and Templeton & Rex, for respondent. YOUNG, J. The complaint in this case in substance alleges that for some time prior to January 5, 1895, the plaintiff was the owner in fee of a certain 160 acres of land situate in Walsh county (particularly describing it); that said land was incumbered by several liens created by his grantor, one of which, being a mortgage to one W. R. Shephard, had been foreclosed by a sale of the land, and a sheriff's certificate of sale issued to said Shephard at the date of such sale, to wit, December 30, 1893; that in March thereafter the certificate of sale was assigned to the defendant, James Garbutt; that thereafter, and in the month of December, and within the year allowed for redemption, the plaintiff offered to pay to the defendant the amount of money required to make redemption from the foreclosure; that the defendant, with intent to defraud and deceive the plaintiff, and for the purpose of inducing the plaintiff to defer making redemption, well knowing that plaintiff relied upon his representations, promised plaintiff that he would give him further time in which to redeem, which promise was made for the purpose of deceiving plaintiff, and without intention of keeping it, and to induce plaintiff to alter his position, and to put it out of his power to redeem said land, to the end that defendant might get a sheriff's deed thereto; that plaintiff, in reliance upon such promise, allowed the period of redemption to expire; that on the 5th day of January, 1895, the defendant caused a sheriff's deed thereto to be issued to him, placing the same of record on that day, transferring the legal title to said land from plaintiff to this defendant; that the plaintiff was ready, willing, and able to pay the amount necessary to redeem said land, which was $731.35 and interest; that through such promises plaintiff was induced not to do so, but to pay his money upon other indebtedness held by the defendant; that said land was on the 30th day of December, 1894, of the value of $4,500. To this statement of facts the plaintiff adds this prayer: "Wherefore plaintiff demands judgment against the defendant for the sum of $3,768.65, with interest thereon from the 30th day of December, 1894, together with the costs and disbursements of this action." The defendant by his answer admitted the existence of the liens, the foreclosure of the mortgage, and purchase of the sheriff's certificate, and also the issuance and recording of the sheriff's deed, and that the land was of the value of $1,800, but by a denial placed all other allegations in issue. The case was tried as an action at law to a jury, and a verdict returned for the plaintiff for $2,178.45, with 7 per cent. interest from January 5, 1895. The defendant made a motion for a new trial, which was granted by the trial court. From the order setting aside the verdict and granting a new trial, plaintiff appeals. The motion was based entirely upon errors of law, only one of which will be referred to. The court, in its order granting the motion, used this language: "The decision of the court herein is based solely upon the first ground specified in defendant's motion, to wit, that the complaint does not state facts sufficient to constitute a cause of action." The abstract discloses that in fact this objection adopted by the court as the basis of its order was made at the opening of the trial, in the form of an objection to the introduction of any testimony in the case, and after the impaneling of a jury. Treating the objection as directed to the sufficiency of the complaint to state a cause of action generally, it was not good, as we shall hereafter notice. Considering it, however, as assailing the complaint as not stating facts sufficient to constitute a cause of action at law, and bearing in mind that when made the trial was actually proceeding: as an action at law, the objection should have been sustained. The complaint shows upon its face that, through a regular process of foreclosure, the legal title to plaintiff's land passed to defendant on January 5, 1895. Plaintiff had a legal right to redeem from that foreclosure up to December 30, 1894. That right he did not exercise. For the loss which followed as a consequence of his failure to do so he seeks redress in this action. This case, in its facts, is not an isolated one, and the authorities disclose that appeals to the courts for relief in such cases have not been of unusual occurrence. So far as we are able to learn, however, redress has been sought through, and granted only by, courts of equity. The reason for this is not arbitrary, but arises from the very foundation of the right to relief. In this case, at its threshold, we are confronted with a statement of facts embracing fraud, deception, and false promises, set out and urged to defeat the effect of the sheriff's deed issued regularly and in due course to the defendant, which deed, if it is unassailed or unassail able, determines the rights and relation of the parties as to this land. These facts so urged address themselves peculiarly and exclusively to a court of equity, and invoke the power of that court to extend complete relief. The power of courts of equity to give relief in this class of cases has not only been generally recognized, but has also been unhesitatingly exercised when a proper state of facts required it. See Combs v. Little (N. J.) 40 Am. Dec. 207; Laing v. McKee, 13 Mich. 124; Wilson v. Eggleston, 27 Mich 257; Adams v. Kable (Ky.) 44 Am. Dee. 772; Griffin v. Coffey, 50 Am. Dec. 519; Wingate v. Ferris, 50 Cal. 105; Beatty v. Brummett, 94 Ind. 76; Ryan v. Dox, 34 N. Y. 307; Schroeder v, Young, 161 U. S. 334, 16 Sup. Ct. 512; Tice v. Russell, 43 Minn. 66, 44 N. W. 886. It may also be noted that the result of the establishment of the facts urged as the basis of plaintiff's action is to create a trust relation between him and the defendant. If the defendant secured the sheriff's deed by false promises, and under circumstances which in equity would entitle the plaintiff to relief against it, he would nevertheless hold the land, the title to which he had thus wrongfully acquired, as trustee for the benefit of the plaintiff. Huxley v. Rice, 40 Mich. 73; Combs v. Little, 40 Am. Dec. 207 (see note appended, with citations). This court, in Jasper v. Hazen, 1 N. D. 75, 44 N. W. 1018, not only announces its adherence to the foregoing principle, but that case, which was somewhat similar to the one at bar, is strongly in point in upholding our view that plaintiff's remedy is, under the facts stated, exclusively in equity. The doctrine as announced by the court and above referred to is also specifically embodied in section 4263, Rev. Codes: "One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained for the benefit of the person who would otherwise have had it." Under the head of "Obligation of Trustees," section 4265, Id., provides that "a trustee may not use or deal with the trust property for his own profit or for any purpose unconnected with the trust in any manner." Again, section 4273 fixes his liability in the following language: "A trustee who uses or disposes of trust property contrary to section 4265 may at the option of the beneficiary, be required to account for all profits so made or to pay the value of its use and if he has disposed thereof, to replace it with its fruits or to account for its proceeds with interest." Thus, not only does the statute declare that a trust relation results, but to some extent, at least, fixes the liability of the trustee; and should it appear that the plaintiff is entitled to relief, and the land in question and its fruits are not restored to him, if such is his election, he may recover its value, with interest, or the proceeds of the sale, with interest, as he may elect,-in either case deducting the amount due upon the sheriff's certificate. The facts which go to show the existence of the trust relation in this class of cases, as already stated, not only appeal directly to a court of equity, but the effect of successfully establishing them results in the finding of a trust, which is peculiarly of equitable cognizance. No case has been found wherein an action at law has been maintained under the state of facts here existing. It is urged, however, that the fact that the remedy at law has not been resorted to by suitors is by no means conclusive on the question as to whether or That not it should be accorded in this case. is true. But we are clear that to hold that an action at law may be maintained upon the state of facts which here exists would be subversive of the fundamental principles which distinguish courts of law and courts of equity and their remedies. This court cannot lend its sanction to the recognition of a remedy at law where the remedy at equity is ample. long established, and by usage exclusive, particularly where the subject-matter, as in this case, is so peculiarly the subject of equity jurisdiction. It may be urged that technically the objection made to the admission of evidence which the court used as the basis of his order granting the new trial was not broad enough to raise the question as we have discussed it. We think that it was. Regardless of this, however, we are of the opinion that when the records of a case show that a case exclusively of equity jurisdiction has been tried as an action at law, and to a jury, and that a new trial had been granted by the trial court, this court would sustain the order of the trial court setting aside the verdict and granting a new trial, regardless of the fact that neither party had made objections to such method of trial. Having reached the conclusion that the facts of this case make it one solely of equitable cognizance, the duty then fell upon the trial judge to find the facts himself. The verdict of a jury or findings of a referee would be simply advisory, and entirely subject to his control. See Rev. Codes, $$ 5420, 5460; also, Lawson, Rights, Rem. & Prac. § 3414. In Milk v. Moore, 39 Ill. 584, the court said: "The chancellor is the sole judge of the evidence and its weight; and even when he directs an issue of fact to be tried by a jury, to inform his conscience, he may adopt the verdict of the jury, or he may disregard it and render a decree against their finding, or he may grant a new trial, as he may believe justice demands." The action of the trial judge in setting aside the verdict and granting a new trial was therefore merely the exercise of an inherent authority of an equity court. This view is sustained by Wingate v. Ferris, 50 Cal. 105, which was a very similar case, with the exception that the property involved was personal. Wingate alleged that the steamer Express, owned by him, and of the value of $10,000, was about to be sold under legal process to satisfy a debt of $300; that the defendant, Ferris. agreed to attend the sale and bid the property in for him, and subsequently allow him to redeem by paying the amount of his bid and interest. Ferris did bid it in for $1,200, but, in violation of his promise, sold the property. Wingate asked for $9,027 damages. We quote from the statement: "The case was tried with a jury, the same as a case at law. and a general verdict returned in favor of the plaintiff for $4,939. Neither party objected to this form of trial, or asked for special findings. Judgment was rendered for the plaintiff for the sum named in the verdict." The defendant moved for a new trial, which the court granted, stating the reasons therefor in this language: "The remedy of the plaintiff against the defendant is not in law (Heyland v. Badger, 35 Cal. 404), but in a court of equity (Sandfoss v. Jones, Id. 481); and the remedy is to redeem the property, if it is in the hands of the trustee, or to compel the trustee to account for it, if he has sold it to a bona fide subsequent purchaser without notice (Sandfoss v. Jones, supra). Defendant, it appears, sold the property. No action has been brought to set aside the sale. Plaintiff, therefore, does not complain of the sale as against the vendee of his trustee. He complains of the conduct of his trustee, but has not availed himself of his remedy to compel him to account to him coneerning the trust. Defendant himself could have given this litigation that direction, by filing a cross complaint in equity, but neither has he chosen to do that. Both stand upon strict legal rights, and contest their claims by an action of trover in a court of law; and, as strict matter of law, I think defendant is entitled to a new trial." Plaintiff appealed from the order granting the new trial. In Its opinion the supreme court said: "The complaint contains a statement of a cause of action such as would entitle the plaintiff to equitable relief. We entertain no doubt that the district court had power to set aside the general verdict and the judgment entered thereon. As the cause was one of equity cognizance, the facts should have been found by the court, or specially by a jury under an order of the court. The order vacating the verdict was proper." The court, however, did not affirm that portion of the order granting a new trial, stating that no reason appeared why the testimony need be retaken, but directed the district court to proceed to determine the issues of fact "upon the testimony already taken, and upon such further testimony, if any, as may be taken, in case the said district court shall, in its discretion, open the case for further testimony." We do not deem it advisable in this case to require the trial court to use the testimony already taken, or to restrict the steps which counsel may see fit to take to properly prepare the issues and submit the case to the court in accordance with the views we have expressed. The order granting the new trial and vacating the verdict is affirmed. The costs of this appeal to abide the final decision of the case. All concur. erty, caused by colliding with an unlawful obstruction upon a well-defined trail, traveled for more than one year, under section 7550, Rev. Codes, there must be some evidence connecting the defendant with the doing of the unlawful act causing the injury. 2. Where it appears that defendant, for his principal, and pursuant to his request, employed a third person to build a fence around certain unoccupied land for which defendant was agent, and had such fence built by a third person, and the latter, in violation of defendant's instructions, and without his knowledge, erects an unlawful fence across such trail, and injury results therefrom, defendant is not liable, under the section above referred to. (Syllabus by the Court.) Appeal from district court, Cass county; Charles A. Pollock, Judge. Action by A. F. Kuhnert against Erasmus D. Angell. Verdict for defendant. From an order granting a new trial, plaintiff appeals. Affirmed. John E. Greene, for appellant. A. B. Lee and Benton & Bradley, for respondent. YOUNG, J. The plaintiff, who is the proprietor of a livery stable in the city of Fargo, obtained a verdict in this case in the district court for injuries done to one of his teams, and other attendant and consequent injury, resulting from its being driven into a barbed-wire fence, placed across what he designated as a "trail," the fence not having the protective guard rails which the law requires at such places. Defendant was the agent for the owner of the land where the accident occurred. The defendant made a motion for a new trial, which was granted. Plaintiff appeals. We think the motion for a new trial was properly granted, and find it necessary to refer to only two of the several grounds upon which the motion was based. At the close of the case, the defendant asked for a directed verdict, stating, among other grounds, this: That the evidence failed to show that the defendant had any direct connection with the work himself (that is, the building of the fence causing the injury). Insufficiency of the evidence to justify the verdict was also urged in the motion, one of the particulars specified being in the following language: That "there is no evidence in this case which shows or tends to show that the defendant, as agent for the owner of the land, on the line of which the accident occurred, was guilty of any act of nonfeasance, either towards his principal or the public." It appears that, early in 1896, George B. Hunt, who was the owner of the land where the accident occurred (which we may add was an unoccupied tract, having no buildings upon it, and mostly in timothy meadow), requested defendant, who for several years had managed it, attended to leasing it, and otherwise looked after the owner's interest, to build a fence around it. Pursuant to the direction received from Mr. Hunt, the defendant employed a Mr. Stenso to erect the fence. The latter did so, and was paid for it upon its completion, by the defendant, on July 1, 1896. This fence consisted of three strands of barbed wire, attached to cedar posts. It crossed what, for the purposes of this decision, we will treat as a well-beaten trail, traveled for the length of time necessary to bring it within the meaning of the statute. No board, pole, or other suitable protection was placed on the fence where it crossed the trail, as required by statute. On the night of July 13, 1896, at about 11 o'clock p. m., plaintiff's team, driven by a person to whom he had hired it, m following this trail ran into the fence, resulting in the injury complained of. Plaintiff brings this action under section 7550 of the Revised Codes, which is as follows: "Every person who shall knowingly and willfully obstruct or plow up, or cause to be obstructed or plowed up, any public highway or public street of any town, except by order of the road supervisors for the purpose of working the same, or injure any bridge on the public highway, or shall build or place a barbed wire fence across any well traveled trail, which has been the usual and common route of travel for not less than one year prior to the commission of the offense; without placing on the outside of the top tier of barbed wire on said fence, a board, pole or other suitable protection, to be at least sixteen feet in length, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by fine not exceeding one hundred dollars, and shall be liable for all damages to person or property by reason of the same." The plaintiff does not seek to recover from the defendant on the ground that the latter was negligent in not properly protecting the public against injuries which might result from the unsafe condition of the property intrusted to his care by Mr. Hunt, and that this was the cause of the injury. He sues under the statute above quoted, and to entitle him to recover the facts must be sufficient to sustain a verdict under that statute. The section referred to is found in the Penal Code. It makes one who knowingly and willfully places or builds a barbed-wire fence, without the protection features, across a well-traveled trail, which has been in common use for at least one year prior to the act of building, guilty of a misdemeanor, and punishable by a fine. In addition, such person is made liable for damages. To recover under this statute, the plaintiff must show that the defendant built or placed an unlawful obstruction across the trail, in the form of a fence, without the necessary protection which the law requires, and this knowingly and willfully. We do not mean to say that the defendant must have actually done the work himself, but he must have been associated or connected with it in some manner, other than by inference, so as to make him an actor in willfully and knowingly doing the unlawful act. Not only is there no evidence in the case tending to show that the defendant assisted in building or placing the unlawful fence across the trail, actually, by direction or otherwise, but it does appear affirmatively, and is not disputed, that the defendant directed the party who actually built the fence to place guard rails upon it at the crossing of this trail; further, that, at a later time, when the fence needed repairing at this point, he reiterated the same directions. It also appears that the defendant was not aware that these directions had not been complied with, until after the accident. The defendant, therefore, having directed the building of a lawful fence, cannot be held liable, under the statute, upon inferences drawn from the fact that he was the agent of the owner of the land. Upon the two grounds before indicated, the district court properly granted a new trial. That order is affirmed. All concur. CAMERON v. GREAT NORTHERN RY, CO. (Supreme Court of North Dakota. Nov. 11, 1898.) TRIAL-MOTION TO DISMISS-INJURY TO SERVANT DEFECTIVE APPLIANCES-DUTY OF MASTERASSUMPTION OF RISK QUESTIONS FOR JURY PRESUMPTIONS-APPEALABLE ORDER-JUDGMENT. 1. A motion to dismiss, made at the close of plaintiff's evidence, is tantamount to a demurrer to the evidence, and in such cases everything which the jury might reasonably infer from the evidence is to be considered as admitted. In the light of this established rule of practice, held, under the evidence, that it was error to withdraw this case from the consideration of the jury. 2. Employers are bound to furnish reasonably safe and adequate machinery and appliances for the use of their employés; and if the employer negligently fails in the performance of this duty, and the employé is injured thereby while in the exercise of due care, the master will be liable; and when such machinery, etc., is safe and adequate when furnished, the employer is bound to exercise due care in keeping it safe, and to this end seasonable inspection and repairs thereof are required of the employer. Under the evidence in this case, held, that whether these duties have been performed by the defendant, with respect to the decedent, was a question of fact for the jury. 3. Held, further, that the question of whether the decedent, as an employé of defendant, assumed the risk involved in taking charge of the train in question, in the condition it was then in. was a question of fact for the jury, under the evidence. 4. Held, further, under the evidence, that it was a question for the jury to determine whether the defendant was guilty of the negligence charged in the complaint, and also whether such negligence, if shown to exist, was the proximate cause of the injury complained of. 5. Held, further, in view of the evidence, that the question of whether any negligence of the deceased contributed to his death was a question of fact for the jury. 6. Held, in deference to the instinct of selfpreservation, that, in a case where there is no eyewitness of an accident resulting in death, a person who has suffered death by a railroad accident will be presumed to have been in the exercise of due care at the time, until the contrary is made to appear by evidence. 7. At the close of plaintiff's evidence, the trial court, on motion of defendant's counsel, made an order dismissing the action for failure of proof. Plaintiff served notice of appeal from said order. Held, on motion to dismiss the appeal, made in this court, that said order was neither a judgment nor an appealable order, and, hence, that the attempted appeal from such order was abortive. 8. Such order was entered, without any change of its form or terms, in the judgment book of the clerk of the district court. The order concluded as follows: "The plaintiff's action is hereby dismissed. Done in open court this 8th day of December, 1897." Held, in view of the explicit language of the order dismissing the action, that while the same, considered as a judgment, is irregular and highly improper in form, it nevertheless embodies the final judicial determination of the action made by the trial court, and, being duly entered in the judgment book, is sufficient, in substance, as a judgment. (Syllabus by the Court.) Appeal from district court, Grand Forks county; S. L. Glaspell, Judge. Action by Esther M. Cameron against the Great Northern Railway Company. Judgment for defendant. Plaintiff appeals. Reversed. Bosard & Bosard, for appellant. W. E. Dodge and Burke Corbet, for respondent. WALLIN, J. This action is brought by the widow of Edward James Cameron to recover damages for the alleged negligence of the defendant in causing the death of the said Cameron. The action was tried to a jury, and at the close of the plaintiff's evidence the case was withdrawn from the consideration of the jury, and the action dismissed. This ruling is assigned as error in this court, and the only question that need be determined here is whether such ruling was error. There is little dispute in the evidence as to the existence of the determining facts of the case. The record shows that the decedent was at the time of his death a passenger train conductor in defendant's employ; that on the 17th day of November, 1894, he was killed by falling or being thrown from the passenger train of the defendant then in his charge as conductor; that such accident occurred in the county of Grand Forks, N. D., about midway between the station of Arvilla and the next station, situated about seven miles east of Arvilla, and named "Emerado." The train was east bound, and was the regular Pacific passenger train, consisting of nine cars, and running between Seattle, Wash., and St. Paul, Minn. The accident occurred between 6:43 and 6:52 p. m., and at a time when the train was running at a high rate of speed. The train reached Grand Forks at 7:25 p. m., and there the conductor was missed; and, on being searched for, his body was found at the place above indicated. The evidence shows that the right shoulder of the deceased was crushed down, and one of his arms broken. His skull was also broken. A physician testified that death resulted immediately, or almost immediately, as a consequence of said injuries. The deceased had taken charge of the train at Minot, N. D. It appears that the deceased was seen alive just after the train passed Arvilla; and there is evidence tending to show that a very few minutes before the accident the deceased was seen in the rear sleeper, the last car of the train, passing through the car, towards the rear end of the car, but no witness testifies to having seen him pass out of the back door of the car and onto the rear platform at that time, or at all that day. It appears that the train in question, while backing into the station at Great Falls, Mont., met with an accident whereby the steps leading to the platform were broken, which steps were located at the rear end, and on the left and north side, of the last car in the train, which car was a sleeper, and was the same car on which the deceased, so far as shown by the evidence, was last seen alive. The rear platform of this sleeper was about five feet wide across the car, and about three feet the other way. Counsel, in discussing the case in this court, have assumed that the rear end of a platform on the last car of a passenger train is supposed to be guarded by a chain, which is so made that it can be fastened and unfastened; but the evidence in this case fails to show whether there was or was not such a chain on this car. After the steps had been broken, and before the train left Great Falls, Mont., the broken steps were removed by the employés of the defendant, and the bolts which fastened the steps were laid on the rear platform of the sleeper; and the car came east in the train, and continued to be the rear car, and said steps were absent and not on the car at any time until after it reached Grand Forks, N. D. The evidence fails to disclose whether the defendant has a car shop or other facilities for the repair of its cars at any point on its line between Great Falls, Mont., and Grand Forks, N. D.; but the evidence tends to show that similar accidents to car steps had occurred with some frequency in the mountains between Seattle, Wash., and Helena, Mont., during the years 1893 and 1894, and that, when steps were so broken and removed at any point between the Pacific Coast and St. Paul, it was not the custom of defendant to take out the car for repairs while in transit. It is claimed that the deceased, having been in defendant's employ for some years prior to the accident, is chargeable with knowledge of this custom of the defendant in this particular, and voluntarily assumed any risk which such custom involved. Reverting to the rear platform in question, it appears that there was an iron gate, some 31⁄2 feet high, which, when closed, shut in the platform on the sides, and prevented ingress or egress to the sleeper by way of the steps leading to the platform. These gates swing from the car to the railing.swing out to close, and in to open. The hinge makes the fastening for the gate. There is one hinge on the gate, and one on the car, and also another hinge halfway be tween. As the gate closes, the hinge straight |