Page:North Dakota Reports (vol. 48).pdf/716

 was served with the summons; that the interpreter used in taking the deposition was prejudiced against the defendant, on account of having been formerly in the defendant’s employ and discharged by it; and, finally, that the deposition was taken on a legal holiday to wit, February 12.

We are of the opinion there was no error in receiving the deposition in evidence, for at the time the same was taken the defendant appeared and participated in the taking thereof. The appearance was general. The defendant therefore waived the above informalities; that is, the legal right to object to the reception in evidence of the deposition for any of the causes above mentioned. Section 7890, C. L., provides that either party may commence taking testimony by deposition at any time after service upon or the appearance of the defendant in the action. Many of the assignments of error relate to the reception or exclusion of testimony as adduced at the trial, either by deposition or witnesses present and testifying. We have examined them with considerable care, and conclude that none of the rulings of the court in this respect amount to prejudicial reversible error. In fact, many of the assignments of error in this respect are very technical.

Error is predicated on several of the instructions. All have been examined and none of them merit any discussion except two, which are analyzed in defendant’s brief. The first of these is as follows:

“The assumption of risk is a defense in this case. Assumption of risk as used in these instructions means that a servant or employee on accepting the employment assumes all the ordinary and usual risks and perils incident thereto, which he knows, or in the exercise of reasonable care should have known, to exist. However, a servant or employee does not assume the extraordinary and unusual risks of the employment.

“Gentlemen, you will apply this rule to all the facts and circumstances in this case, and determine therefrom whether or not the deceased, Luigi Nardella, assumed the risk of the alleged acts of negligence that caused his injury, if any, resulting in his death.”

This instruction is only a part of the whole instructions in the same respect. The court further instructed as follows:

“You are instructed that a section hand such as Luigi Nardella, working in a busy railroad yard, where trains are moving and cars are being kicked and shunted around at all times, assumes the risk from danger ordinarily incident to his occupation, and must protect himself from approaching trains or cars, either attached to the engines or being kicked