Page:North Dakota Reports (vol. 48).pdf/709

 T. G. C. KENNELLY; as administrator of the estate of Luigi Nardella, deceased, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Appellant.

Statement of facts.

1. One Luigi Nardella was employed by the defendant railway company, in the capacity of section man. While so employed and while in the discharge of his duties in the defendant’s railway yards at Mandan, and while engaged in cleaning ice and snow from a crossing where a street of the city crossed the railroad tracks, he was struck by certain cars of defendant which were propelled against him and so injured that he immediately died.

Death—$4,000 damages held not excessive.

2. Plaintiff brought an action under the Federal Employers’ LiaityLiability [sic] Act to recover damages for the benefit of the widow of deceased and her two children. The evidence disclosed that one of the children was more than thirty years of age and was married, and was in no way dependent upon his father for support. It further shows that the other child, a boy of seventeen years of age, may have in part been dependent. The jury returned a verdict in favor of plaintiff for $4,000, and apportioned the same as follows: to the widow $4,000. It is held that the verdict is sustained by the evidence.

Master and servant—extraordinary risk of injury by cars held not assumed by section hand.

3. The defendant interposed assumption of risk .as a defense. The evidence disclosed that the risk was not an ordinary but an extraordinary one, and there is no evidence to show that deceased either knew of or appreciated it; it is Acid that the deceased did not assume the risk.

Commerce—section hand cleaning ice from crossing held engaged in “interstate commerce.”

4. The railroad tracks upon which deceased was working at the time of his death were used in the transportation of both interstate and intrastate commerce. Held, in the circumstances of this case and from the evidence that deceased was engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act.

Sufficiency of instructions.

5. Certain instructions of the court considered and held not to be prejudicial nor erroneous.

Appeal and error—single undertaking to cover two appeals held sufficient.

6. Certain motions by plaintiff for dismissal of the appeal considered and for reasons stated in the opinion are denied.