Page:North Dakota Reports (vol. 48).pdf/717

 from one place to another in the ordinary and usual manner.

“The railway company here is not an insurer of the safety of its employees. Their work, particularly that of a laborer in a switchyard, is dangerous, and injury because of one of the dangers of the business is. an assumed risk, and the railway company is only liable if there is negligence shown by a preponderance of the evidence, and that this negligence was the proximate cause of the accident.

“You are instructed that it was the duty of Luigi Nardella to protect himself against injury from ordinary switching operations, and no recovery can be had here unless plaintiff has shown you by a preponderance of the evidence that some of the railroad men were negligent in the performance of their duty, and that such negligence was the proximate cause of the death of Luigi Nardella.

“You are instructed that the switching yards of any railroad company are necessartly a place of the greatest danger and a section hand working in these yards especially on or near the lead track, as was Luigi Nardella must be diligently on the lookout, and if you find from the evidence that the cars in question were kicked down the lead track in the ordinary manner and without negligence, and there was no negligence on the part of other railway men, proximately causing the death, and Luigi Nardella was killed because of his failure to protect himself from the approaching cars, then I charge you, as a matter of law, his death was because of his own fault alone, and plaintiff cannot recover damages in this action, but your verdict must be for defendant.”

In determining whether the instruction is erroneous, recourse must be had to the federal Employers’ Liability Act of April 22, 1908 (chap. 149, 35 Stat. L. 65), which provides for the recovery of damages for injuries received by certain persons while engaged in interstate commerce. ‘The act supersedes and displaces chap. 297 of the Session Laws of 1915 of the state of North Dakota in so far as the latter purports to deal with the subject-matter of the former. Second Employers’ Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. ed. 327, 38 L. R. A. (N. S.) 44. And though the context of the two acts is practically identical, the federal act only is effective, and the state act is of no effect in so far as it purports to fix liability in damages to any person suffering an injury while he is employed by a carrier in interstate commerce.

Conceding the correctness of this view, it would seem that an action under the federal act should be brought in the federal court, thus avoid-