Page:North Dakota Reports (vol. 48).pdf/725

 court. See 41 N. D. 395, 170 N. W. 868. The jury returned a general verdict, and answered 12 special questions in plaintiff's favor. The jury found that the switchmen of the defendant failed to give the decedent proper warning, and to notify him that the defendant was about to kick some cars along the lead track where he was working; that the switching operation was not conducted in the ordinary and usual manner; that the switchmen and trainmen were negligent in the operation; that there was carelessness in the switching operations and of decedent’s fellow workmen. The jury also by its general verdict found that the decedent did not assume the risk, and that the defendant and the decedent were then engaged in interstate commerce. Iam of the opinion that the findings of. the jury find support in the evidence, and should not be disturbed. See Koofos v. G. N. Ry., 41 N. D. 176, 170 N. W. 859. I am of the opinion also that the trial court upon the record did not err in recognizing the capacity of the plaintiff to maintain this action, in receiving the deposition questioned, and in sustaining the amount of damages awarded by the jury.

, J., concurs.

, J. I agree that the motion to dismiss the appeal should be denied. The respondent contends that the appeal should be dismissed under the rule announced in Sucker State Drill Co. v. Brock, 18 N. D. 508, 120 N. W. 757. In my opinion this contention is without merit. In that case the undertaking made no reference to the appeal from the order denying a new trial. In this case the undertaking on appeal specifically refers to both the appeal from the judgment and the appeal from the order denying the alternative motion for judgment notwithstanding the verdict or for a new trial. Under the rule announced in Sucker State Drill Co. v. Brock, supra, such undertaking is sufficient.

I agree with the majority members that the deceased was engaged in interstate commerce, and that the case falls within the provisions of the federal Employers’ Liability Act. I also agree that the verdict in this case cannot be said to be excessive as a matter of law.

I do not agree, however, with the intimation in the principal opinion to the effect that United States Supreme Court placed an erroneous construction upon the federal Employers’ Liability Act when it ruled in Seaboard Air Line R. Co. v. Horton, 233 U. S. 493, 34 Sup. Ct. 635, 58