this point is unreasonable. It is not in harmony with that of the fireman, who saw different tracts of fog. He only saw one, and no snow. Little Rock & Ft. Smith Ry. Co. v. Finley, 11 Amer. & Eng. Ry. Cas. 469.

His testimony was in conflict with that of three other witnesses. It was certainly proper for the jury to settle this question. They evidently did not believe the "fog story."

If the fog is cleared away, it is practically an end of the defense on the question of negligence. The defense needed the cover of the fog to hide carelessness of the engineer. Without it there would be no excuse for his failure to see the mare, on this straight line of road, just starting from the depot at a rate of speed that took three or four minutes to go 105 rods. If he had been watchful, as was his duty, he could have prevented the accident. That he did not see the mare, and that the shock from striking her did not arrest his attention, are circumstances sufficient to warrant the verdict establishing inattention and negligence on his part.

THOMAS, J. Plaintiff brought this suit in the district court of Minnehaha county to recover the value of mare, which she alleges in her complaint was run over and killed by defendant's engine and cars, through the gross negligence of its servants and employes, who were in charge and control of said train of cars at the time of the accident.

The defendant, by its answer, puts in a general denial to the allegations of the complaint, and further alleges that its servants and agents were careful, prudent, and skillful in the management and running of said engine and train of cars on the occasion mentioned in the complaint.

The plaintiff proved the ownership and killing of the mare, and it was stipulated by both parties that the reasonable value of said mare was $140.

The defendant, among other witnesses, introduced the engineer and fireman, who were in charge of the engine at the time of the killing of said mare, all of whose testimony was in

'NOTE BY JUDGE THOMAS.-In the case of Volkman v. Chicago, etc., Ry. Co., change the words, "negligence and want of ordinary care," so as to read, "gross negligence," wherever they occur in the opinion.

effect that there was no negligence or want of ordinary care or skill in the management of said engine and cars on the occasion referred to, but their evidence showed clearly that the killing was unavoidable.

The plaintiff then called one or two witnesses in rebuttal, but their testimony was immaterial, as it had no tendency to refute or contradict the evidence given by witnesses for defendant.

Both parties having rested, counsel for defendant moved the court to direct a verdict in its favor, because there was no evidence in the case tending to show negligence or want of ordinary care on the part of its agents or employes in the management of its engine and cars at the time of the killing of said mare. This was promptly overruled by the court, and thereupon, after the usual charge by the court, the case was submitted to the jury, who returned a verdict for the plaintiff for the sum of $140, and judgment was entered in accordance therewith.

In due time defendant, by its counsel, filed grounds, and applied to the court to set aside said judgment, and grant a new trial, which was denied, and defendant prosecutes this appeal, seeking a reversal of the judgment, and in this behalf assigns numerous errors, among them "the refusal of the court to direct a verdict for defendant." This is the only error, perhaps, that we shall notice at length, as we think it strikes directly at the raison d'etre of the judgment.

The plaintiff, by proving the killing of the mare, established a prima facie case under section 679 of the Code of Civil Procedure; and had defendant failed to introduce any proof, she would have been entitled to a verdict in her favor, under the direction of the court. But the defendant introduced its employes engaged in the running of the train at the time; and as their evidence shows no negligence, or want of ordinary care and skill, the prima facie case of plaintiff was overcome; and upon her failure to show affirmatively that defendant was guilty of gross negligence in the killing of said mare, she could not recover therefor.

It is clear that but for the statute (section 679 of the Code of Civil Procedure) the mere proof of the killing would not be sufficient to make a prima facie case.

As this section is in derogation of the rule at common law and the general rule of practice prescribed by our Code of Civil Procedure, it behooves us to consider the effect, scope, and object of this provision, in order to properly construe it. It seems to us that this section was enacted for the purpose of overcoming the difficulty, generally supposed to exist with plaintiffs in this kind of actions, in making proof of facts which are only known as a rule to the servants and agents of the defendant. Hence, when the railway company placed their servants and employes, in whose breasts these facts are presumed to rest, on the witness stand, and purged their consciences by testifying, under oath, touching all the facts and circumstances within their knowledge, concerning the killing or injury, the reason for the statute ceases. To hold otherwise would work great injustice and oppression, and would be to prescribe a different rule for the adjudication of rights of persons and property engaged in the railway business from that which obtains in reference to other persons whose rights of property are in nowise more sacred.

This view of the law seems to be in harmony with the decisions of the courts of last resort of all the states which have a similar statute on this subject. Railroad Co. v. Wainscott, 3 Bush, 149; Railroad Co. v. Packwood, 7 Amer. & Eng. R. Cas. 584; Railroad Co. v. Talbot, 78 Ky. 621; Durham v. Railroad Co., 82 N. C. 352.

The position taken by counsel for plaintiff, that the question as to when the prima facie case is overcome is a question for the jury, is entirely untenable. It is clearly a question of law for the court.

The question raised by the counsel for defendant as to the necessity of alleging a compliance with section 680 of the Code of Civil Procedure, which provides for an appraisement or valuation of all stock killed or injured by railroad corporations in this territory, which question was raised by an objection in the

nature of a demurrer ore tenus in the court below, was properly overruled by said court. We regard the statute in question as merely cumulative and permissive in its character, and a compliance therewith is not a prerequisite to the institution of suits of this kind.

We are clearly of the opinion that the district court committed an error in refusing to grant counsel's motion to direct a verdict in favor of the defendant; hence the judgment is reversed. All the justices concurring.

STUTSMAN COUNTY, Respondent, v. MANSFIELD et al., Appellants.

1. Pleadings-Construction of Complaint on Objection to Evi

dence.

When it is objected to evidence at the trial that the complaint does not state facts sufficient to constitute a cause of action, a greater latitude of presumption may be indulged to sustain it, than when the same objection is made by demurrer.

2. Same-Complaint on Treasurer's Bond-Sufficiency.

A bond given by M. was "conditioned for the faithful and impartial discharge of the duties of the office of county treasurer, and a true and correct accounting for all moneys, credits, accounts, and property which should come into his hands, and a delivery of the same over according to law," etc. The complaint, in an action upon the bond, after averring. non-performance of each of the conditions, alleged that M. did not pay over the balances in his hands to the territorial, county, and schooldistrict officers upon receiving proper vouchers; that from taxes and other sources, as such treasurer, he had received $9,232.84. over and above all moneys legally paid out; that the board of county commissioners had directed him to settle with them; that he neglected and refused so to do; that he had presented a statement showing the above. balance, which he failed to account for or produce; that demand therefor had been made; that, having failed to pay said balance, the board directed suit to be instituted against him and his sureties; that afterwards the said board removed him from office, declared the same vacant, and appointed one W. to fill the vacancy thereby created. Held, that the complaint was good on an objection to evidence, that it did not state facts sufficient to constitute a cause of action under the rule applicable when the objection is raised in that form.

3. Same-Duty of Treasurer-Pol. C. c. 21, § 95; c. 5, § 14.

This complaint, under Pol. C. c. 21. § 95, requiring the treasurer to settle his accounts with the board of county commissioners when directed by them, and under chapter 5, § 14. requiring him, on going out of office, to turn over to his successor all public moneys, etc., was good as to the allegations in these respects, and therefore warranted the overruling of the objection.

4. Same-Office and Officer-Vacancy-Pol. C. c. 5, § 11.

M. having been re-elected county treasurer and declined to qualify, (having also waived his statutory time for that purpose,) held, under Pol. C. c. 5, § 11, providing that there shall be a vacancy on the failure of a person elected to qualify, that a vacancy occurred which it was the duty of the board of county commissioners to fill; and. after this was done, under section 14, providing that an officer going out of office shall deliver to his successor all public moneys, etc., it was M.'s duty to at once deliver to his successor such money, etc., without demand. (Argued May 18, 1887; affirmed May 26; opinion filed February 20, 1888.)

Appeal from district court, Stutsman county; Hon. W. H. FRANCIS, Judge.

The proceedings of the board of county commissioners of Stutsman county show that appellant W. E. Mansfield, on the 7th day of January, 1885, presented for approval his bond for county treasurer for the ensuing term, and that it was rejected. Their proceedings of the 8th show that he was present, and waived his right of ten days for qualifying as treasurer, and the waiver was accepted by the board. The office on that day was declared vacant by them, and George L. Webster was appointed county treasurer until the next general election. This suit was commenced on the 13th day of January, 1885.

Dodge & Camp, for appellants.

The court erred in overruling the defendants' objection to the introduction of any evidence on the ground that the complaint does not state a cause of action.

Separating the facts from the statements of evidence supposed to exist, and conclusions of law, they do not constitute a cause of action. Clay Co. v. Simonsen, 1 Dak. 403; Bell v. Sherer, 11