ed by the city council in apportioning the assessment seems to have been framed after a due consideration of the rights of all the lot-owners, and appears to be equitable and just, and is approved. It is unnecessary to consider the other proposition of the answer,-that the assessment made by the city council is conclusive unless appealed from, and, as the authorities pro and con are not cited in the briefs, it will not be discussed. The finding in this case seems to be just and equitable, and based upon the testimony, and there is no equity in the plaintiffs' petition; and the judgment of the court below is affirmed. The other judges concur. LAMASTER V. CITY OF LINCOLN et al. (Supreme Court of Nebraska. July 2, 1891.) Appeal from district court, Lancaster county; CHAPMAN, Judge. Chas. L. Hall, for appellant. E. P. Holmes, (J. R. Webster, of counsel,) for appellees. MAXWELL, J. For the reasons stated in the opinion in Lansing v. City of Lincoln, 49 N. W. Rep. 650, the judgment of the district court is affirmed. The other judges concur. Boss v. NORTHERN PAC. R. Co.1 (Supreme Court of North Dakota. July 31, 1891.) INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE -PROXIMATE CAUSE-INSTRUCTIONS. 1. It is incumbent upon a railroad employe whose duty requires him to ride upon one of the company's trains to ride in such places as the railroad company has provided for that purpose; and, if he is injured while riding in a more dangerous position, the law will presume that his negligence contributed to such injury. But this presumption may be overcome by evidence that such employe occupied such dangerous position through no fault or negligence of his own, and not of his own free will. 2. An employe, upon entering the service of a railroad company, has the right to assume that the railroad and its appurtenances are so constructed as to render him safe in the performance of his duties, and that he will not needlessly be exposed to extraordinary risks of which he has no notice, or of which he is not chargeable with notice. 3. Such employe does not assume the risk arising from the erection and maintenance of a switch-stand and target of such height, and in such position and condition, that the target will sometimes come in contact with the sides of the cars of passing trains; particularly when such employe of the company knows that the rules of the company prohibit the erection of any such switch-stand within less than six feet of the track. 4. In an action for damages upon the ground of a neglect of duty on the part of the defendant, it must appear that the neglect of duty was not only the cause, but the proximate cause, of the injury; but, to enable a defendant to shield himself behind an intervening cause, such intervening cause must be one that severs the connection of cause and effect between the negligent act and the injury. 5. Where the negligent act of one responsible party concurs with the negligent act of another responsible party in producing an indivisible injury to a blameless third party, such third party has his right of action against either of the negligent parties. 6. While the statute requires the charge of the trial judge to the jury to be exclusively in writing, yet where a party sits by and hears the trial judge give the jury parol instructions, and 1 Rehearing denied, August 29, 1891. fails to object thereto at the time and upon that ground, he is conclusively presumed to have waived the error. (Syllabus by the Court.) Appeal from district court, Cass county; WILLIAM B. MCCONNELL, Judge. Action by Herman Boss against the Northern Pacific Railroad Company for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Affirmed. John C. Bullitt, Jr., and Ball & Smith, for appellant. Taylor Crum and S. G. Roberts, for respondent. BARTHOLOMEW, J. On the 15th day of December, 1885, plaintiff was in the employ of defendant as a section hand, and was engaged in unloading wood in defendant's yards at Fargo. On that day, and while riding on one of defendant's trains from the round-house to the depot, -a distance of about one mile,-plaintiff was struck by a switch signal, and knocked from the train, and injured. This action was brought to recover damages for such injury. The train on which plaintiff was riding was known as the "Jamestown Accommodation." It consisted of an engine, tender, freight caboose car, and an ordinary coach. This caboose-car was equipped, as it appears such cars usually are on defendant's road, with a platform and steps at each end, with a door in each end, and side doors in the front part. The front end of this car was being used as a baggage-car, and the rear end as a smoking-car. The end door in front was habitually locked, but there was no notice or anything to indicate that entrance could not be made at that end. Ordinarily, these cars, when in proper use on freight trains, are not locked at either end. This train regularly made a brief stop at the round-house, and passage on the train was free to all parties from the round-house to the depot. The section foreman of the gang in which plaintiff worked had directed the men under him who did not bring their dinners with them to ride on this train to the depot in going to dinner, and plaintiff and others of his fellow-workmen had been in the babit of so riding for a number of days. They had, however, been directed by the conductor and brakemen of the train to ride in the caboose-car, and not in the coach. On the day of the accident, plaintiff and the others were working about 500 or 600 feet from and north of the point where the train would stop. When the train whistled the men started in a run to reach the point where it would stop. Plaintiff seems to have been in front. He crossed the track to the south side in front of the engine, and passed back until he reached the front steps of the caboosecar, where he climbed upon the platform. Access to the train was from the ground on either side. About the same time others of the workmen were getting on the front platform of the caboose from the north side. Plaintiff tried the door in the front end of the car, and found it locked. It does not appear that he made any effort to leave the front platform and get aboard at the rear of the car. The train started almost immediately. One of the section men who went to the rear of the caboose testifies that the train was moving when he got on. There are two parallel tracks from the round-house to the depot. This train came in on the south track, but before reaching the depot it was thrown through a switch on the north track. When the train started there were so many of the section hands on the platform that plaintiff was crowded down until he sat upon the second step, with his feet resting on the lower step. As the train was thrown onto the switch he arose to his feet, he says, to enable him to hold on better. As the train passed from the switch onto the north track a sudden lurch of the car threw plaintiff to the south until his head passed the line of the outside of the car, and was struck by the target on the switch-stand at that point. When struck, plaintiff was not looking to the east in the direction the train was running, but was looking to the south-west. The train was running at more than double the speed allowed by the rules of the defendant company inside the Fargo yard limits. The switch-stand by which plaintiff was injured was about seven feet high, and was located four feet from the track. The target at the top extended nine inches in each direction. When the stand was erect this target would be within eight inches of a passing train. The switch-stand was bent, throwing the top still nearer the train and it had been known to come in contact with passing cars. The rule of the defendant-with which plaintiff was familiar-required all switch-stands of this height to be placed not less than six feet distant from the track. Where a switch-stand was required to be erected within less than six feet of the track, a low pattern was used. This switch-stand had been in use for two years prior to plaintiff's injury. Defendant's road-master had notified the proper division superintendent, long prior to the injury to plaintiff, that this switch-stand was too high and dangerous. Immediately after the injury to plaintiff it was removed, and the low pattern substituted. There was a general verdict for plaintiff. The facts as recited are either uncontradicted, or supported by such evidence that the jury might fairly find them to exist. There was a motion to take the case from the jury at the close of plaintiff's testimony, and repeated when the testimony was all in; but as the same points are preserved and presented under the exceptions to the instructions, and to the refusal of the court to give certain instructions asked, the motion need not bespecially noticed. The negligence of defendant would seem to be established too clearly to be seriously questioned. The learned counsel for defendant contend, however, that the facts do not establish any negligence of which this plaintiff can take advantage; that the defendant had the unrestricted right to erect structures on its right of way where and when it pleased, subject only to liability for such injuries as might be caused by such structures to employes while engaged in their proper sphere of duty, and to passengers while riding in their proper place in the cars. As a gen eral proposition the contention is correct. Whether at the time of the injury plaintiff be regarded as a passenger or an employe, we think he was lawfully upon the train; that he was not a trespasser. But as the case has been submitted to us on the theory that his rights were only those of an employe, and the duty and liability of the defendant to him were only such as it owed to its employes, and as that view is the more favorable to the defendant, we will accept it, in passing upon the case. The plaintiff was, then, lawfully on the train, in obedience to the orders of his foreman. He had no duty to perform ou the train except to ride in such places on the caboose-car as defendant had provided for that purpose. If he failed to do so; if he occupied a more dangerous position,— and the steps to a platform would be a more dangerous position,-that would raise a presumption of such contributory negligence on his part as would defeat a recovery, admitting the negligence of defendant. To overcome that presumption of contributory negligence, and entitle himself to a recovery, it would be necessary for the plaintiff to establish the fact that he occupied such position through no fault or negligence of his own, and not from choice. On this point the learned trial court fully and correctly charged the jury. If plaintiff succeeded in establishing the facts as above indicated, he would then be in a position to take advantage of defendant's negligence. But it is insisted that plaintiff failed to show that he was not in this dangerous position from choice, because he failed to show that he made any effort to get on board at the rear platform after he found the front door locked. But it was the duty of the jury to consider all the circumstances. It is apparent that it required a vigorous effort on the part of the plaintiff and his fellow-workmen to reach the train before it would start. Plaintiff got on board at the first available point. There was nothing to notify him that he could not gain entrance in that way. had been in the employ of defendant for years, had been accustomed to ride in their freight caboose cars when they were in proper use on frieight trains, and knew that both doors were habitually unlocked when the car was in use. He had knowledge that the front door of this car was kept locked, and only learned that he could not gain entrance when he tried the door. The train was expected to start every moment, and did start almost instantaneously. Plaintiff was compelled to remain on the platform, or take his chances of getting on board from the ground with the train in motion. His only choice was a choice between two dangers; and whether or not, in taking the course he did, he was guilty of any negligence was a question for the jury. We cannot say that they were not warranted in finding that plaintiff, at the time he was injured, was on that platform without fault on his part, and not of his own free will. He no It is further urged that the risk of his being injured as he was injured was assumed by plaintiff when he entered the employ of defendant. It is beyond legal controversy that the employe, when he enters upon the service, assumes the ordinary risks incident to such service, and also the extraordinary risks of which he has notice, or of which, in the usual exercise of his faculties, he ought to have notice. It is equally well settled that an employe, upon entering the service of a railway company, has the right to assume that the railway and its appurtenances are so constructed as to render him safe in the performance of his duties, and that he will not needlessly be exposed to any extraordinary risk of which he has no notice. Railroad Co. v. Irwin, (Kan.) 16 Pac. Rep. 146: Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. Rep. 627; Railroad Co. v. Oram, 49 Tex. 342; Railroad Co. v. Swett, 45 Ill. 197; Railroad Co. v. Russell, 91 Ill. 298. Nor does he assume the risk arising from the erection of a high switch-stand and signal so near the track that, at best, it clears the cars but a few inches, particularly when he knows the rules of the company forbid the erection of any such structure in such position. Pidcock v. Railroad Co., (Utah,) 19 Pac. Rep.191; Scanlon v. Railroad Co., (Mass.) 18 N. E. Rep. 209; Boss v. Railroad Co., (Dak.) 40 N. W. Rep. 590. Nor can we say that plaintiff, in the ordinary exercise of his faculties, was bound to know the condition of that switch-stand. It is true that he had passed it upon this train nearly every day for two weeks; but he had no duty to perform in connection with the running of the train,-nothing in any manner that would be likely to call his attention to the condition of this switchstand. Under such circumstances it would be only natural that he should pass it without notice. We do not see why he should be charged with knowledge of its condition simply because he had passed it, any more than any passenger who had passed it an equal number of times. Railroad Co. v. Irwin, supra, and Pidcock v. Railroad Co., supra. It is undisputed that plaintiff had no actual knowledge of the existence of this danger. Had he seen it, duty and self-preservation alike would have required him to avoid it, if possible. Had he known of its existence, or had he been chargeable with such knowledge, perhaps it would have been negligence on his part not to have watched for and guarded against it. But it cannot be said, as a matter of law, that plaintiff was negligent in not looking for an object of the existence of which he had no knowledge, and which he had a legal right to presume did not exist. Railroad travel is so rapid that it has frequently been held negligence for a party, while riding in the cars, to voluntarily expose his person beyond the outer line of the car. In this instance, however, the evidence tends to show that plaintiff was thrown to the south and beyond the line of the car by a sudden lurch of the train as it passed through the switch, caused, doubtless, by the improper speed at which the train was running. We cannot say as a matter of law that this exposure was the result of any negligence on plaintiff's part; and we wish to add here that the law on the subject of contributory negligence, so far as it applies to this case, was very fully and v.49N.w.no.12-42 fairly stated in the charge of the learned trial court to the jury, and the evidence nowhere discloses a state of facts that would warrant the court in taking that question from the jury. Appellant insists that its negligence in maintaining the switch-stand was not the proximate cause of plaintiff's injury, and that, as the facts were undisputed, the court should have so instructed the jury as matter of law; and in support of this contention counsel cite West Mahoney Tp. v. Watson, 116 Pa. St. 344, 9 Atl. Rep. 430, and Railroad Co. v. Trich, 117 Pa. St. 390, 11 Atl. Rep. 627. It is claimed, first, that as it appears that plaintiff was crowded down upon the lower step and into a dangerous position by his fellow-workmen upon the platform, therefore the superseding or responsible negligence of a third party intervened between the negligent act of defendant and the injury. As to this point, a perusal of the cases cited at once discloses that they are not applicable to the case at bar. In the first case, action was brought against the township to recover the value of a team by reason of the negligence of the township in suffering its highways to become obstructed. An ash-heap had been allowed to accumulate in the highway, which overturned plaintiff's sleigh, and the team ran away. After running some distance, they went upon the railroad track, but were frightened off by a train, and their direction changed. After running some two miles the other way, they again went upon the track, and were killed by another engine. The court very properly held that the accident at the ash-heap was not the proxi. mate cause of the death of the horses. There was an all-sufficient subsequent intervening cause in that case. And the case in 117 Pa. St., and 11 Atl. Rep., is similar in principle. A street-car was stopped to enable a passenger to get on at the rear platform. Just as the passenger reached the platforin, the driver, suddenly and without notice, whipped up his horses to avoid a runaway team. The sudden start threw the passenger back on the ground, and she was injured by the runaway team. The court held that the negligence of the driver in suddenly starting the car was not the proximate cause of the injury. In this case, too, there was a subsequent intervening cause. These cases from Pennsylvania reiterate and confirm the rule first announced in that court in Railroad Co. v. Kerr, 62 Pa. St. 353, and repeated in Hoag v. Railroad Co., 85 Pa. St. 293, as follows: "The immediate, and not the remote, cause is to be considered. This maxim is not to be controlled by time or distance, but by succession of events. The question is, did the cause alleged produce its effect without another cause intervening, or was it to operate through or by means of this intervening cause?" In this case the injury-the hurt-was caused by the switch-stand, and that alone. It is true that if any one of a great many circumstances that preceded that injury, including the crowding on the platform, had never occurred, plaintiff would not have been where he was, and would not have been injured; but no one of these circum stances was directly or indirectly the cause of the injury. The intervening cause, to be a shield to defendant, must be such as to actually break all connection of cause and effect between the negligent act and the injury. To be a superseding cause it must alone, and without the slightest aid from the act of defendant, produce the injury, and to be a responsible cause it must be the culpable act of a responsible party. Shear. & R. Neg. §§ 31, 32, and cases cited. But the direct connection of cause and effect between the improper switch-stand and the injury remains unimpaired in this case. The utmost latitude that could be given the evidence would -only warrant the conclusion that the culpable act of the fellow-workmen concurred with the existing, continuing, negligent act of defendant in producing the injury. But the concurrent negligence of the fellow-workmen is of no importance. Where the negligent acts of two parties concur in producing an indivisible injury, the injured party has his right of action against either. Pastene v. Adams, 49 Cal. 87; Martin v. Iron-Works, 31 Minn. 407, 18 N. W. Rep. 109; Ricker v. Freeman, 50 N. H.420; Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. Rep. 764; Railway Co. v. Salmon, 39 N. J. Law, 309. proves the rule announced in Railroad Co. v. Kellogg, supra, say in Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. Rep. 764: "The circumstances which do in fact exist are to be determined by the jury from all the evidence, and, where they have determined what the circumstances were at the time, then they can with some reasonable degree of certainty determine the question whether the result could reasonably have been expected to occur in the light of such circumstances." As we have said, defendant's negligence was a continuing act. In the light of the circumstances, as the jury was warranted in finding them to exist at the time, the injury was in a high degree probable. The action of the court in refusing to take the question of proximate cause from the jury was entirely correct. What we have already said will obviate the necessity of any detailed consideration of the errors assigned upon the instructions given and refused. The charge of the court, which we deem fair in all respects to the defendant, was substantially in accord with the views here expressed. The instructions asked and refused embodied defendant's views of the propositions we have already discussed. The main charge of the court to the jury was in writing, but the court read the sections of the statutes defining the various degrees of negligence, and made some oral comments to the jury in connection therewith. All that was said by the court was taken down by the stenographer. It does not appear that it was not written out and given to the jury upon their retirement. No exception was taken at the time to the manner of giving the instructions. The statute (section 5048, Comp. Laws) requires the instructions to be in writing. At the close of the instructions, counsel agreed in open court "that, at any time within which a stay was granted, either party might take his or its exceptions to the charge, or any part thereof;" and within the life of this stay defendant took exception to the giv ing of oral instructions, but not to the matter of the instructions so given. We hold that the agreement could cover exceptions to the matter of the charge only. It is not competent for counsel to sit by and make no objections to oral instructions when given on that ground, and by agreement save their exceptions weeks later. Such a course is not fair to the court, and has the support of no adjudicated case, so far as we know. When counsel so sit by without objection, they must be held to have waived the error. Sack. Instruct. Juries, 14; Garton v. Bank, 34 Mich. 279; State v. Sipult, 17 Iowa, 575; Vanwey v. State, 41 Tex. 639. Many errors are alleged upon the rulings of the court in the admission or rejection of testimony. We have examined them all, and consider them not well taken. Their reproduction here would be an unwarranted use of space. The judgment of the district court is in all things affirmed. All concur. "The breach of duty on which an action is brought must be not only the cause, but the proximate cause, of the damage to plaintiff." Under this familiar language, it is urged that the breach of duty in this case was not the proximate cause of the injury in the sense that the injury was not one that could have been naturally and reasonably anticipated as a result of such breach of duty. There is not an entire uniformity of holding upon this point. The rule most generally followed, and which we adopt, was announced in Railroad Co. v. Kellogg, 94 U. S. 469, as follows: "But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been seen in the light of the attending circumstances. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible character of the saw-mills and piles of lumber. But the argument in this case is that defendant could not reasonably have foreseen or anticipated the circumstances that led up to the injury. We think this is a misconception of the rule. Shear. & R. Neg. § 29, thus states the rule: "The practical solution of the question appears to us to be that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought, at the time of the negligent act, reasonably possible to follow if they had been suggested to his mind." The supreme court of Wisconsin, which fully ap- | by request. WALLIN, J., having been of counsel, did not sit on the hearing of this case; Judge WINCHESTER, of the sixth district, sitting ILLSTAD V. ANDERSON. (Supreme Court of North Dakota. Aug. 14, 1891.) REFERENCE-FINDINGS-APPEAL. 1. An order of reference referring "the action" to a referee, "with the usual powers, based upon the consent of the defendant in open court that the case be referred to take the testimony and report, warrants the referee in making and reporting findings of fact and conclusions of law. 2. Defendant, having objected to referee making any rulings whatever, and having failed to take any exception to the action of the referee in receiving evidence over his objection, cannot raise the question whether such evidence should have been received, the objection not having been renewed before the court on application for judgment on the report, and no exceptions having been taken on such application. 3. A motion to dismiss, made at the close of plaintiff's case, is waived, unless renewed after all the evidence is in. 4. Errors not specified in bill of exceptions, where motion for a new trial is made on a bill, must be disregarded by the trial court and on appeal. (Syllabus by the Court.) Appeal from district court, Grand Forks county; CHARLES F. TEMPLETON, Judge. Action by Thomas Illstad against Edward Anderson for a dissolution of a copartnership and an accounting. Judgment for plaintiff. Defendant appealed. Affirmed. A. J. O'Keefe and O. H. Boyeson, for appellant. Bangs & Fisk, for respondent. CORLISS, C. J. Most of the alleged errors in this case are not properly before 8. The action was for dissolution of a copartnership between plaintiff and defendant. The issues coming on for trial at a regular term, the court made an or der of reference, referring the action to a referee, "with the usual powers." One of the errors assigned is the action of the referee in reporting findings of fact and conclusions of law. It is insisted that the order of reference is not broad enough to warrant the exercise by the referee of such power. The answer to this claim is the consent of the defendant and appelant, made in open court, that the case be referred "to take testimony and report.” In all cases it is the duty of the referee to report the evidence, and the word "report" in the consent is unnecessary, unless | it is to be construed as embracing the report of findings of fact and conclusions of jaw. Moreover, the order in terms referred the action, i. e., the whole case, and was not limited to any specific issue or fact. Where the order is upon consent, it may direct the reference of all or of any of the issues. Assuming that this was an order of reference upon consent, all the is sues must be regarded as having been referred, not only because the whole case is referred, but also because no particular issues are designated in the order. Laws 1889, c. 112, § 1. If it is a reference without consent, the same conclusion is inevitable. It is apparent from section 2 of this act that, unless the reference is limited by this order to some specific question of fact, the referee is authorized to hear and decide all the issues. On the trial by a referee, practically the same proceedings are had as on a trial before the court. The referee must not only report the evidence, but also his findings and conclusions. This is what he has done in this case, and this it was his duty to do under the statute and the order of reference and defendant's consent. It is next insisted that the referee, if he had full authority to try the issues, erred in not ruling upon certain objections to evidence offered by plaintiff and received by the referee. No exception having been taken before the referee, the defendant can. not avail himself of these objections. Section 3 of chapter 112 of Laws of 1889 requires the referee to report to the court all exceptions taken on the hearing. This clearly contemplates that exceptions must be taken as on trials before the court to entitle a party to challenge on appeal the ruling of the referee. This rule is confirmed by the general provision that “the trial by referee shall be conducted in the same manner as a trial by the court." Neither did the defendant take any excep. tion to the referee's ruling when the case was before the court on application to confirm the referee's report and for judgment, nor did he there renew his objections and except to the refusal of the court to sustain him in his objections to the evi dence received by the referee. A still more decisive answer to these objections is that defendant by his affirmative action has sealed his lips against urging them here. Preliminary to the hearing before the referee, the defendant himself objected "to the referee making any rulings whatever." The referee, therefore, merely followed the wishes of the litigant, who now insists that the referee erred in acceding to his request. It is further urged that the court erred in not dismissing the action, because it is claimed that it appeared that the business in the prosecution of which were earned the profits to recover his share of which plaintiff instituted this action for dissolution and accounting was the sale of intoxicating liquors, and that such business was illegal, because the plaintiff held no license authorizing him to conduct the same, the only license being issued to and held by the defendant. There are several answers to this objection. The defense is not pleaded. Therefore defendant had no right to offer evidence on the point, nor could he avail himself of evidence sustaining it, although disclosed by plaintiff's own case. Cardoze v. Swift, 113 Mass. 250. Said the court in this case: "In such an action, a defendant who has not pleaded illegality in the contract sued on has no right to offer evidence of such illegality, or even to avail himself of it, when disclosed in the plaintiff's testimony, if the court does not refuse to entertain the case." See. also, Railroad Co. v. Miller, (Neb.) 21 N. W. Rep. 451-453. The question is not before us for another reason. The error, if any, in denying the motion to dismiss, was an error of law occur ring on the trial. It should have been specified in the bill of exceptions. Comp. Laws, § 5090, subsec. 2. No such specifications having been made, it was the duty of the trial court to disregard the point on |