Page:North Dakota Reports (vol. 48).pdf/712

 S. F. Ry Co. 174 N. W. 798; Koofos v. G. N. Ry. Co. (N. D.) 170 N. _W. 859; Hennessy v. Ginsberg, 180 N. W. 796; Kalashian v. Hines, 177 N. W. 602; Falahee v. City of Jackson, 180 N. W. 507; Lusk v. Phelps, 175 Pac. 756; Gowan v. McAdoo, 173 N. W. 440.

“It is to be noted that in the case at bar that the defendant crossexamined the witness in the taking of those depositions. Under well settled rules, he waived all irregularities. We also quote from the above South Dakota case: last column, on p. 453: Allison v. Chi. St. P. Ry. Co. 158 N. W. 452.

“The service upon defendants mentioned in § 510 means service of process by which defendants are brought into court.” Also see Walters v. Rock, (N. D.) 18 N. D. Rep. 45; Green v. Walker (Wis.) 41 N. W. 534-

It is beyond the province of the court to say what the amount of damages shall be. That is solely for the jury, and the amount thereof rests solely in the discretion of the jury. Penuett v. Atchison, T. & S. F. Ry. Co. 174 N. W. 798.

, C.J. This action is one brought under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), whereby plaintiff, as administrator of the estate of Luigi Nardella, deceased, sought to recover. damages in the sum of $35,000 on account of the alleged carelessness and negligence of the defendant in propelling, switching, or pushing one or nore of its loaded cars against and upon the deceased in such a manner that he was hauled under the wheels and his body ran over by them, and his head cut off; the cars at the time being propelled or pushed by one of defendant's engines. The complaint is in the usual form in this character of case, and need not be set out at length.

The answer admits that Nardella was on January 4, 1917, in defendant’s employ as a section hand, and that at the time he received the injuries which caused his death he was engaged in cleaning snow and ice off its tracks in its yards in the city of Mandan, but claims he received the injuries which caused his death, not from any negligence of the defendant, or its servants, but by reason of his contributory negligence. Defendant further alleges Nardella received the injuries causing his death through and because of one of the ordinary risks of his employment as a section laborer; that he knew of the dangers and perils of the situation, and assumed all risks of injury in connection therewith,