Birdzell, J.
This is an appeal by a portion of the defendants from a judgment entered in the district court of Burleigh county, in favor of the plaintiff. The action is one to recover damages occasioned to the plaintiff, a brakeman on the Soo Eailroad, on the 2d day of January, 1917, by coming in contact with a telephone wire which had been strung across the right of way of the railroad company and causing him to be violently knocked down upon the top of the car upon which he was riding. The jury returned a verdict in favor of the plaintiff against all of the defendants, assessing the plaintiff’s damages at $300. It appears that the wire which occasioned the plaintiff’s injury was strung by the defendants Anderson, who did not appeal from the judgment. In 1916 an association was formed in the community in which the defendants reside for the purpose of establishing a rural telephone line to serve the members of the association. The members styled their association the Stewartsdale Bural Telephone Company. It seems that the capital stock of the company consisted of the telephone equipment and the property of the company'; [20]*20and that the members had a mutual understanding or agreement that they were to share the labor incident to the construction of the line and pro rate the general expenses. There was a written agreement or constitution which provided for a board of directors and for officers of the association. The board of directors was given general executive authority to carry out the objects of the association.
The sole contention of the appellants is that the negligence which caused the plaintiffs injury was the negligence of the Andersons, who do not appeal, for which they aloné are liable. It is admitted that the Andersons were members of the association, at least originally, and there is no question but what the defective construction- which was the direct cause of the injury was the work of the Andersons in conjunction with one Moran, a hired lineman. It is contended that the work was done by them in violation of the by-laws and the instructions given by the executive officers, and was wholly outside the authority, of the Andersons as members of the association.' The instructions of the trial court amply cover this phase of the case and the question as to the liability of the defendants resolves itself at once into one of the sufficiency of the evidence to support the verdict against the members of the association other than those who did the work. It is true, as pointed out by the appellants’ counsel, that the testimony of Mr. Burch, which covers quite completely the association’s connection with the work in question, and the relations existing between the association and the Andersons, goes a long way toward disproving the authority of the Andersons to act for the association. This testimony goes to establish in substance that there was a misunderstanding with reference to the location of that portion of the line which- was to be constructed with a view to giving telephone service to the Andersons; that in adjusting this difficulty it became necessary to move some of the poles; that there was delay -in stringing the wire and installing the telephones after the wire had been hauled, due to the failure of one Carl Anderson to put up a note as payment of his share-; that it was understood between Mr. -Burch and Mr. Anderson that Anderson could not “get his phone until he had left -a note with Mr. Leonard Bell at the First National Bank in Bismarck;” and that Anderson contended that he would not put up his note until he got the phone. Mr. Burch further testifies that Anderson finally agreed to take the note (which [21]*21liad been previously executed) to the bank and that he (Burch) had made arrangements with Mr. Shuman, a man qualified to superintend telephone construction work, to send a man to do the work when he would tell him to. The substance of Mr. Burch’s testimony is that the company had not authorized the construction work of the Andersons ; but, on the contrary, that they had forbidden it for two reasons:' First, because they had not put the poles where the line was to be located; and, second, because they had not settled for their proportionate share of the expense. The testimony of Oscar Anderson, however, is that before stringing the wire he had attended a meeting of the association, and that at that meeting he told his associates that there was a piece of ground along the railroad upon which he could not get the •right of way for the telephone line and that it would have to be changed and at that meeting Mr. Burch said, “Run it up along the line and bring it down,” and that Anderson asked Burch at that time if he was entitled to his telephone as soon as he got that changed and he said “Yes.” He testified further:
“Q. Now, isn’t it a fact, Mr. Anderson, that the company wouldn’t consent to any of this change of route until after Carl Anderson came in and agreed to pay the extra money? Isn’t that a fact? A. He came in when we agreed to change it. ‘Sure!’ Mr. Burch says, ‘whenever you change that line you are entitled to your telephone.’ ” Carl Anderson testified that the poles at the Soo crossing, upon which the line that occasioned the plaintiff’s injury was later strung, had been standing since the latter part of October, which would be more than two months previous to the injury. That the other members of the telephone .company used the road during this time; that the defendant Voight, secretary of the company, was present when he got the wire to string upon the poles; that he had had the telephone instrament which he intended using since early in the fall; that he had given a note to the bank for the money which he was owing to the. company and left the note in the bank. (The date of leaving it there does not seem to be established in the testimony.) .He testified further that the members of the company never told him that they were holding up the telephone until the note was paid. As to his fulfillment of the conditions upon which the company was willing to install the telephone, he testified:
[22]*22Q. Now, isn’t it a fact, Mr. Anderson, that the telephone company would not string the wire and would not install your telephone until you made some satisfactory arrangements about the pay ? . . .
A. I made satisfactory arrangements with the bank. There is where they told me to do it.
Q. Now, isn’t it a fact, Mr. Anderson, that the telephone, company would not string the wire and would not install your telephone until you made some satisfactory arrangements about the pay?
A. Yes, they did. ...
Q. Tell the jury why the telephones were delayed from June until January?
A. I don’t know unless it was because they thought that the poles were not in their right places, is the only reason I could see..
As to the authority of the Andersons to proceed with the line work, the record shows clearly that the line work was to be done under the superintendence of one F. L. Shuman; and that Burch, president of the company, had, at one time, left an order with Shuman, covering the construction work in question, but that he had later cancelled it. It is only fair to assume that the Andersons, as members of the association, knew of the general arrangement with Shuman to superintend the work.
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Birdzell, J.
This is an appeal by a portion of the defendants from a judgment entered in the district court of Burleigh county, in favor of the plaintiff. The action is one to recover damages occasioned to the plaintiff, a brakeman on the Soo Eailroad, on the 2d day of January, 1917, by coming in contact with a telephone wire which had been strung across the right of way of the railroad company and causing him to be violently knocked down upon the top of the car upon which he was riding. The jury returned a verdict in favor of the plaintiff against all of the defendants, assessing the plaintiff’s damages at $300. It appears that the wire which occasioned the plaintiff’s injury was strung by the defendants Anderson, who did not appeal from the judgment. In 1916 an association was formed in the community in which the defendants reside for the purpose of establishing a rural telephone line to serve the members of the association. The members styled their association the Stewartsdale Bural Telephone Company. It seems that the capital stock of the company consisted of the telephone equipment and the property of the company'; [20]*20and that the members had a mutual understanding or agreement that they were to share the labor incident to the construction of the line and pro rate the general expenses. There was a written agreement or constitution which provided for a board of directors and for officers of the association. The board of directors was given general executive authority to carry out the objects of the association.
The sole contention of the appellants is that the negligence which caused the plaintiffs injury was the negligence of the Andersons, who do not appeal, for which they aloné are liable. It is admitted that the Andersons were members of the association, at least originally, and there is no question but what the defective construction- which was the direct cause of the injury was the work of the Andersons in conjunction with one Moran, a hired lineman. It is contended that the work was done by them in violation of the by-laws and the instructions given by the executive officers, and was wholly outside the authority, of the Andersons as members of the association.' The instructions of the trial court amply cover this phase of the case and the question as to the liability of the defendants resolves itself at once into one of the sufficiency of the evidence to support the verdict against the members of the association other than those who did the work. It is true, as pointed out by the appellants’ counsel, that the testimony of Mr. Burch, which covers quite completely the association’s connection with the work in question, and the relations existing between the association and the Andersons, goes a long way toward disproving the authority of the Andersons to act for the association. This testimony goes to establish in substance that there was a misunderstanding with reference to the location of that portion of the line which- was to be constructed with a view to giving telephone service to the Andersons; that in adjusting this difficulty it became necessary to move some of the poles; that there was delay -in stringing the wire and installing the telephones after the wire had been hauled, due to the failure of one Carl Anderson to put up a note as payment of his share-; that it was understood between Mr. -Burch and Mr. Anderson that Anderson could not “get his phone until he had left -a note with Mr. Leonard Bell at the First National Bank in Bismarck;” and that Anderson contended that he would not put up his note until he got the phone. Mr. Burch further testifies that Anderson finally agreed to take the note (which [21]*21liad been previously executed) to the bank and that he (Burch) had made arrangements with Mr. Shuman, a man qualified to superintend telephone construction work, to send a man to do the work when he would tell him to. The substance of Mr. Burch’s testimony is that the company had not authorized the construction work of the Andersons ; but, on the contrary, that they had forbidden it for two reasons:' First, because they had not put the poles where the line was to be located; and, second, because they had not settled for their proportionate share of the expense. The testimony of Oscar Anderson, however, is that before stringing the wire he had attended a meeting of the association, and that at that meeting he told his associates that there was a piece of ground along the railroad upon which he could not get the •right of way for the telephone line and that it would have to be changed and at that meeting Mr. Burch said, “Run it up along the line and bring it down,” and that Anderson asked Burch at that time if he was entitled to his telephone as soon as he got that changed and he said “Yes.” He testified further:
“Q. Now, isn’t it a fact, Mr. Anderson, that the company wouldn’t consent to any of this change of route until after Carl Anderson came in and agreed to pay the extra money? Isn’t that a fact? A. He came in when we agreed to change it. ‘Sure!’ Mr. Burch says, ‘whenever you change that line you are entitled to your telephone.’ ” Carl Anderson testified that the poles at the Soo crossing, upon which the line that occasioned the plaintiff’s injury was later strung, had been standing since the latter part of October, which would be more than two months previous to the injury. That the other members of the telephone .company used the road during this time; that the defendant Voight, secretary of the company, was present when he got the wire to string upon the poles; that he had had the telephone instrament which he intended using since early in the fall; that he had given a note to the bank for the money which he was owing to the. company and left the note in the bank. (The date of leaving it there does not seem to be established in the testimony.) .He testified further that the members of the company never told him that they were holding up the telephone until the note was paid. As to his fulfillment of the conditions upon which the company was willing to install the telephone, he testified:
[22]*22Q. Now, isn’t it a fact, Mr. Anderson, that the telephone company would not string the wire and would not install your telephone until you made some satisfactory arrangements about the pay ? . . .
A. I made satisfactory arrangements with the bank. There is where they told me to do it.
Q. Now, isn’t it a fact, Mr. Anderson, that the telephone, company would not string the wire and would not install your telephone until you made some satisfactory arrangements about the pay?
A. Yes, they did. ...
Q. Tell the jury why the telephones were delayed from June until January?
A. I don’t know unless it was because they thought that the poles were not in their right places, is the only reason I could see..
As to the authority of the Andersons to proceed with the line work, the record shows clearly that the line work was to be done under the superintendence of one F. L. Shuman; and that Burch, president of the company, had, at one time, left an order with Shuman, covering the construction work in question, but that he had later cancelled it. It is only fair to assume that the Andersons, as members of the association, knew of the general arrangement with Shuman to superintend the work. Shuman testified that one of the Andersons came to him and asked him to supply a man for that purpose and that he refused “in an indirect way to supply the man.” The testimony of Oscar Anderson throws some light upon Shuman’s answer, wherein he stated that he refused to supply a man “in an indirect way.” Oscar Anderson says that Burch had told him to “get a man and do it;” that he had told him to “go to Shuman and get a man.” “ ‘Shuman,’ he says, ‘will furnish you a man’ and I went there to get him.” However, he got no man from Shuman, the latter saying, “Why don’t you do it yourself, it doesn’t take much of a man to install a phone and string a wire.” It appears that following the conversation with Shuman, the Andersons procured one Moran, who had had experience as a telephone lineman, to assist them in stringing the wire.
It seems to us to be clear upon the whole record that there was a conflict in the testimony with reference to the authority of the Ander-sons to proceed in the way they did to do the work in question. It [23]*23will be noted that in tbe testimony of tbe Andersons it appears that whatever tbcy did by way of prosecuting tbe work was done in tbe open and generally after consultation with tbe officers of tbe company; that they adopted suggestions which were made from time to time by'Burch, and that they were guided in the execution of the work by the suggestions of the chosen superintendent, Shuman. In the light of this testimony, we think it clear that the jury was warranted in finding that the Andersons, in negligently stringing the wire, were engaged in carrying on the work of the association, and that they acted as agents of the association in so doing.
In our opinion, -this case does not turn upon any technical question of the existence or nonexistence of a legal partnership, nor upon the violation of by-laws made to govern the activity of the various members of the association. The record, as we view it, contains ample testimony to support the verdict of the jury. The judgment entered thereon is right and it is affirmed.
Bbuce, Ch. J. I dissent.