Page:North Dakota Reports (vol. 48).pdf/711

 D. 93; Milwaukee Harvester Co. v. Teasdale (Wis) 64 N. W. 422; People v. Donovan (N. Y.) 31 N. E. 1009; Davidson v. Munsey (Utah), 74 Pac. 431.

The loss of the society or companionship of a son is a deprivation not to be measured by any money standard. It is not a pecuniary loss under such a statute as this. Am. R. R. of Porto Rico v. Didricksen, 227 U.S. 149-150.

‘Where a switchman was killed while moving cars of fruit which were left by a train at a station near the state line, it cannot be said in an action under the Federal Employer’s Liability Act, in the absence of testimony showing whether such train or cars crossed the state line, that they were moved in interstate commerce. Osborne v. Gray, 241 L. S. 15, L. ed. 36 Sup. Ct. Rep. 486, affirming 5 Tenn. Civ. App. 519.

“A switchman was not within the Federal Employer’s Liability Act where he was struck and injured by a train which was not shown to have been engaged in interstate commerce, while he was protecting a switch with a flag as his crew were placing on a private siding empty freight cars the ultimate use and destination of which did not appear.’ Shanley v. Phila. & R. R. Co., 221 Fed. ror2; Illinois C. R. Co. v. Behrns, 233 U. S. 473, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646, Ann. Cas. 1914 C. 163, 10 N.C. C. A. 153 affirming 134 C. C. A. 639, 217 Fed. 967, which reversed 192 Fed. 581.

Jacobsen & Murray for respondent.

“The Supreme Court of the United States, has laid down the doctrine clearly as to what will or will not constitute negligence.” Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485.

“The same rule is followed by the Minnesota Supreme Court and applied to a trackman working in the railroad yards.” Murran v. Chicago, M. & St. P., (Minn.) go N. W. 1056.

“The same rule is applied to track men by the Washington Supreme Court. Anest v. Columbia & P. S. R. Co., 154 Pac. 1100.

“The same rule was confirmed and applied by the Supreme Court of Wisconsin, in the case of: Kalashian v. Hines, Wisconsin, 177 N. W. 602.”

“The deceased did not assume the risk of this accident. Why? Because the accident was caused by the negligent acts of co-employees.” Kenyon v. Ill. Cent. Ry. Co. 173 N. W. 44; Bennett v. Atchison, T. &