Page:North Dakota Reports (vol. 3).pdf/132

 Corliss, C. J. This is the second time this case has been before us. On the former appeal the opinion is reported in 2 N. D. 112; 49 N. W. Rep. 408. On the second trial the court directed the jury to find for the defendant. Judgment was entered on the verdict so directed. From that judgment this appeal is taken. Should the case have been submitted to the jury? It is necessary to review the evidence, as the facts seem to be somewhat different from those which appeared from the record on the former appeal. The plaintiff was injured while assisting in coupling an engine to a flat car; known as a “Union Tank Line Car.’ The car was standing on a switch. Plaintiff was directed by Dennis Shields, the foreman of the switching crew of which plaintiff was a member, to go with him to couple onto this car, and to transfer it to another track. Plaintiff turned the switch, and stepped upon the end board of the engine where Shields was standing. The engine then started eastward to back down to this car, which was only a few rods distant,—about 60 or 70 feet. The switch was a curved one. How great was the curve is not disclosed by evidence on this record. Plaintiff appears to have offered to prove that the curve was slight, but this offer was objected to, and the objection sustained by the court. Shields stood on the end board on the outside of the curve, while plaintiff stood on the end board on the inside of the curve. According to plaintiff's testimony he was looking for a pin with which to make the coupling as the engine approached the car. Finding none lying on the drawhead of the car, he turned to the tool box in the rear end of the tank of the engine to look for one there. Discovering none there he next cast his eyes upon the ground to find one, and was still unsuccessful. Finally he espied one on the platform of the car near the end. The engine, he says, was at that time about twenty feet from the car, and moving slowly, about 2 1/2 miles an hour. He leaned over and grasped the pin, and was just in the act of setting it when he was caught between the end of the car and the end of the engine, and one of his pelvic bones crushed. The injury appears to be permanent and quite serious.