would be of public benefit and utility, and a retrial of that issue was rightly denied relators on the second hearing. Section 3, с. 448, p. 646, Laws 1907. That question lies at the threshold of the authority of the court to order the ditch, and it should be determined at the first opportunity, to the end that, if resolved against the petitioners, unnecessary expense may be avoided. As I understand the record in this case, the court below determined this question on the first hearing in these proceedings and declined to hear evidence thereon at the second hearing. No evidence was excluded on the second hearing in respect to the damages resulting from the ditch to the owners of adjoining land. The statute referred to confers upon the court power to defer this particular question until the second hearing, whenever in its opinion expedient or necessary; but it is not required to postpone it when the evidence on the first hearing is sufficiently full and complete to enable the court to reach a conclusion. Nor does it follow necessarily, from the fact that the court on the first hearing finds that the ditch will serve the public ends, that it must in any event order the ditch constructed on the final hearing. If on the final hearing it should turn out that the damages exceed the benefits flowing to the property owners, the whole proceeding may be dismissed, notwithstanding the previous finding of public utility.

PATRICK E. KING v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY

Appellant was engaged in constructing piers for a railway bridge over the Missouri river, for which purpose it furnished its workmen with a derrick and attachments, operated by an engine and friction drums, and located on a barge. Held, whether the appliance was reasonably safe under the circumstances was a question of fact for the jury.

Action in the district court for Dakota county to recover $50,000 for personal injuries. The case was tried before Crosby, J., and a jury which returned a verdict in favor of plaintiff for $30,000. From an order denying defendant's motion for an order setting aside and vacating the special finding and the general verdict of the jury and for a new trial in case plaintiff would accept $18,000 in full payment of his damages in the action, defendant appealed. Affirmed. F. W. Root, for appellant.

ent.

John D. O'Brien, Armand Albrecht, and J. M. Millett, for respond

LEWIS, J.

Respondent recovered a verdict which must stand unless it conclusively appears from the evidence that appellant was not negligent in its duty to furnish safe implements with which to carry on its work. Appellant was engaged in constructing a bridge over the Missouri river in South Dakota, and the work in progress at the time of the accident was transferring timber from a barge in the river to a certain caisson, by means of a derrick and engine which were located on a barge. The derrick was of a standard type, composed of two perpendicular uprights or leaders, thirty five or forty feet long, with a thirty-foot boom, swung from side to side by lines running from the boom back to certain appliances called "nigger-heads," around which the lines were wound, and which, by revolving, pulled the boom to right or left. The boom was suspended in the air by a line, or cable, which led from a point over the top of the mast and back to a drum, which was held in place by the strain of the boom line; but a heavy counterweight was so adjusted that a slight slackening of the taut boom line would cause the dog to drop out and let the boom fall. At the time of the accident respondent was guiding the load attached to the end of the boom line, when suddenly the line gave way at the drum and the boom fell on him, causing severe injuries. The charge of negligence is that the derrick and attachments were defective.

It was claimed at the trial that the accident was caused through the negligence of the engineer, a fellow servant of respondent, for which reason he could not recover. The duty of firing the engine and manipulating the friction drums, so as to release or wind up the cable, was attended to by one man, the engineer, who also controlled the drums by means of foot brakes. A man was employed to hold and manipulate the so-called side lines of the boom, and it was his duty to so control the lines that they would tighten on the nigger-heads, and so give the machinery an opportunity to take up the slack in the lines, and swing the boom in the desired direction. The engineer testified that the cable gave way, releasing the boom, at a time when he was engaged at the engine, and that the accident was not caused by any act of his. One witness, who examined the derrick for the purpose of testifying as an expert, stated that the side lines were an unusual attachment. He also testified that if the boom was slackened, or eased, to the extent of a quarter or half an inch, the counterweight would lift the catch of the dog out of the cogwheel, and so release the cable and drop the boom.

The theory of respondent was that, considering the fact that the derrick stood on a barge, the movement of the derrick naturally caused it to sway more or less in the course of operation, and that the manipulation of the side lines over the nigger-heads, under the circumstances, tended to ease the boom line sufficiently to release the dog. In answer to the special questions, the jury found that the instrumentality was not a reasonably safe one, if properly operated, and that the injury was not caused by the negligence of a fellow servant. It does not appear from the record that the jury were wrong in their judgment, or that the evidence conclusively established that the appliance was reasonably safe.

Affirmed.

J. A. HENDRICKS v. ALANSON CONNER and Another 1

Where there has never been a trial on the merits, and a proposed answer set up a meritorious defense, the order of the trial court in opening a default judgment will not be reversed.

Action to recover $60 on a promissory note. Appeal by plaintiff from an order of the district court for Clearwater county, Spooner, J., re-opening a judgment entered in favor of plaintiff, and allowing a proposed amended answer to stand as an answer to the complaint. Affirmed.

J. A. Hendricks, pro se.

Wm. A. McGlennon and Edward T. Teitsworth, for respondents.

PER CURIAM.

This is an appeal by plaintiff from an order of the Clearwater county district court, granting a motion to reopen a judgment entered herein and allowing defendants to file an amended answer. The action was brought on a promissory note made by defendants to plaintiff for $60, due November 1, 1905. Summons referring to the complaint as on file in the office of the clerk of court of Polk county was served on April 14, 1906. It was not, however, filed until five days later. On April 27 the defendant served an answer, consisting of a general denial and a notice and affidavit for a change of venue to Clearwater county, the residence of the defendants. The original judgment was improvidently ordered in Polk county, notwithstanding the proceedings to change the venue to Clearwater county. Final judgment was entered February 9, 1907, in favor of the plaintiff in Clearwater county. A transcript was filed in Polk county. Execution was issued thereon, and a levy and sale made thereunder. On September 13, the court ordered the case to be opened for trial, allowed the proposed amended answer to stand, upon condition that the judgment,

with the levy made thereon, be allowed to stand as security for payment of any judgment that may be obtained by the plaintiff.

The record reveals a series of motions, as to strike out the answer as frivolous, to enter judgment, to open judgment, and to restrain proceedings under judgment. In consequence the court found itself in a singular condition of confused practice, arising from these motions in connection with many circumstances, as that plaintiff had failed to file his complaint when he issued his summons referring to it, that proceedings were had in both the county in which the action was begun and in the county to which it was transferred, and that the court was not sitting at the place to which a motion was made returnable. As a memorandum of the trial court in connection with an intermediate order indicates, the court in consequence found itself in such a tangle that it then attempted to solve the difficulty by practically making a new start. When the case was finally presented it appeared that there had never been a trial on the merits, that defendants' proposed answer set up a meritorious defense, viz., that their signatures to the promissory note declared on had been procured by plaintiff's fraud, and that the delay was excused in some measure by the previous history of the case, especially by the negotiations of the parties looking to a settlement. The consequent order opening the judgment and permitting the defense, which at the same time secured payment of the judgment by allowing the levy to stand, came within the ordinary rule that the order of the trial court reopening a judgment will not be reversed, except in a clear case of abuse of discretion. Section 1428, Dunnell, Pr. It is obvious that this was a case peculiarly within the discretion of the trial court. An exam ination of the entire record has failed to show any abuse of discretion that could fairly be construed to be reversible error. Affirmed.