Page:North Dakota Reports (vol. 2).pdf/138

 yet we believe that our construction has more reasons in favor of it than the contrary interpretation. It is certainly safer; it conforms to settled rules of practice, the wisdom of which has been thoroughly tested, and it keeps the practitioner within known highways, instead of asking him to explore at his peril an unknown territory. We think the issuance and service of a summons was jurisdictional, and therefore the order of the district court is reversed, and the proceedings dismissed. All concur.

GEORGE A. BENNETT, Plaintiff and Respondent, v. NORTHERN PACIFIC RAILROAD COMPANY, Defendant and Appellant.

Injury to Employe-Contributory Negligence-Evidence.

1. Plaintiff was injured while coupling an engine to a car because there was not sufficient space for his body between them. The drawbars of the engine and of the car were unusually short, leaving a space of only about 10 inches between the end of the car and of the engine when the draw-bars came together, whereas the usual space is from 24 to 30 inches. Held sufficient to justify a verdict that defendant's negligence was one of the proximate causes of the injury. It appearing that plaintiff was injured in consequence of his failure to obey the rule of defendant that he must examine so as to know the kind and condition of the coupling apparatus, the rule giving him sufficient time to make such examination in all cases, held, that he could not recover.

2. Exclamations and expressions of present pain may be proved by any one who hears them, although made subsequently to the injury.

(Opinion Filed July 27, 1891.)

APPEAL from district court, Stutsman county; Hon. RODERICK ROSE, Judge.

W. F. Ball and John S. Watson, for appellant. S. L. Glaspell, for respondent.

Action to recover damages for a personal injury sustained by plaintiff while in defendant's employ. Judgment for plaintiff. Defendant appeals. Reversed and new trial ordered.