Page:North Dakota Reports (vol. 48).pdf/713

 and further denied that plaintiff was legally and lawfully appointed as administrator. The action was tried to the court and a jury. The jury returned a verdict in favor of plaintiff in the sum of $4,000, all of which was apportioned to the widow of Nardella, as sole beneficiary, and judgment was entered accordingly. Subsequently defendant made a motion for judgment non obstante or for a new trial. The court entered an order denying the motion and defendant appeals from that order and from the judgment. Both appeals may be considered together.

The facts necessary to be stated are as follows: The defendant has its yards at the city of Mandan. In the yard are several yard tracks which extend east and west, south of the main track. About three-fourths of a mile east of the depot there branches out of the main line track No. 1. It extends westward, paralleling the main line through the Mandan yards. Near where track No. 1 intersects the main line there is a branch out of track No. 1, extending in a southwesterly direction, and this is designated the lead track. From this lead track other branches or tracks extend, and are numbered from 2 to 7 inclusive, and they are about 12 feet distant from each other. East of the depot perhaps about one-half mile one of the streets of Mandan crosses these tracks. On the street the crossings are of plank, lying parallel to the rails. On the 4th day of January, 1917, the track foreman directed Narcella and a companion worker by the name of Delafave to clear the snow and ice from this crossing, and while doing so to face each other, so that each could give the other warning in event of trains approaching.

As directed the deceased and Delafave, using picks and shovels for the purpose, proceeded to clear the snow and ice from the crossing. They had been working there some time before the injury occurred. ‘The deceased faced west, and Delafave faced east. They were a short distance apart. While in this position, and while removing the ice and snow from the crossing, the switching crew kicked from the east, and in a westerly direction, on the lead track, three cars loaded with cinders. No warning was given. These cars got close to the deceased before they were discovered by Delafave. When he discovered them, he shouted to the deceased ‘Look out,” and then jumped from the track. The deceased tried to get out of the way of the cars but was knocked down by them. He got hold of the front end of the car, and was dragged along for some distance, his head dragging on the rails, and he called to Dela-