Page:North Dakota Reports (vol. 48).pdf/726

 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, and Jacobs v. southern Ry. Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. ed. 970, that the defense of assumption of risk is available in cases arising under the Employers’ Liability Act, except where the violation by the carrier of a statute enacted for the safety of employees contributed to the injury or death of the employee. The proposition which has caused me the greatest difficulty is with respect to the sufficiency of the evidence to sustain the findings of the jury to the effect that the defendant was guilty of actionable negligence; and that the deceased did not assume the risk of the injury which caused his death.

Of course, negligence and assumption of risk are ordinarily questions for the jury, and it is only where the evidence is such that reasonable men in the exercise of reason and judgment can arrive at only one conclusion that they become questions of law. While I have considerable doubt as to the sufficiency of the evidence to support the findings of the jury upon these questions, I am not prepared to say that the jurors, the trial judge, and the majority members of this court are in error in reaching the conclusions which they did.

, J., concurs.

THE STATE BANK OF BOWMAN, Appellant v. WALTER NELSON and CLAIR S. JOHNSTON, Defendants, and SAMUEL P. HALPERN, Respondent.

Appeal and error—chattel mortgagee held guilty of conversion of mortgaged crops; whether answer submitted counterclaim arising after action begun held unnecessary to determine on appeal.

1. In an action to foreclose a chattel mortgage which covered, among other property, crops to be later grown on land occupied by the mortgagors, where the mortgagors were not personally served and where the complaint showed that the owner of the land, who was made a party defendant, claimed an interest in the crop, the latter answered, setting up a lease made with one of the mortgagors subsequent to the date of the