Page:North Dakota Reports (vol. 48).pdf/722

 And had it been held in construing the federal act that “contributory negligence” and “assumption of risk” were but different names for the same thing, the doctrine of comparative negligence would in reality have been established, but as construed, it would seem to exist only where the risk is extraordinary and not known or appreciated.

Regardless, however, of the merit or demerit of the doctrine of assumption of risk and whether it is identical with the principle of contributory negligence, it would seem clear that it has no application here; for the evidence shows that the risk was not one incident to the employment, but was an extraordinary one, and there is no evidence to show that the deceased either knew or appreciated it. The evidence shows that the switching crew consisted of five men, three switchmen, and the engineer and fireman of the engine; that with the engine they pulled the three cars of cinders onto the lead track, and “kicked” them down it to where deceased was working; in other words the engine pushed the cars for a short distance at a considerable speed, and then it was released from the cars, and they proceeded alone at a considerable speed, unattended by any brakeman. The whistle of the engine was not blown, nor the bell was not rung. Two switchmen were near where the accident happened, about 40 feet, but gave the deceased no warning. As before stated, it is claimed by Stabler that he notified deceased from four to five minutes before the cars came down that they were coming down on that track. This, however, is denied by other testimony, and, the jury having found in plaintiff’s favor, it must have determined that no such warning was given. The evidence fairly shows that there was no other engine in that vicinity, in fact we think it fairly shows there were no other engines in the yard, and if so there was no showing that there was any ringing of bells or blowing of whistles, so that if the whistle on the engine that kicked these cars had been blown or the bell rung it could not have been heard on account of the general confusion, and if the engine had remained attached to the cars all of the way and the whistle had been blown and the bell rung as it approached the crossing where deceased was working, and if there had been a brakeman on the cars to give danger signals to the engineer and to set the brakes or cause them to be set, the injury and death of Nardella may have been avoided, at any rate the bringing down of the cars in the manner in which they were brought created a great and unusual danger to plaintiff, and forced upon lim an extraordinary risk which he could not anticipate, and of which