Page:North Dakota Reports (vol. 2).pdf/154

 ent existing pain, and of its locality, are exceptions to the general rule which excludes hearsay evidence. They are admitted upon the ground of necessity, as being the only means of determining whether pain or suffering is endured by another. Whether feigned or not, is a question for the jury. Such declarations and expressions are competent, regardless of the person to whom they are made." See, also, cases cited in opinion, and State v. Gedicke, 43 N. J. Law, 86; Eckles v. Bates, 26 Ala. 655; Yeatman v. Hart, 6 Humph. 374; Hangenlocher v. Railroad Co., 99 N. Y. 136, 1 N. E. Rep. 536. Reversed and new trial ordered. All concur.

HERMAN BOss, Plaintiff and Respondent v. NORTHERN PACIFIO RAILROAD COMPANY, Defendant and Appellant.

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 ridíng 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