Page:North Dakota Reports (vol. 48).pdf/764

 Pac. 356; 26 Cyc. 1094; 34 Cent. Digest “Master and Servant,” ¶ 165: 33 Cyc. 726-727; 29 Cyc. 487-488; 105 Fed. 449.

, J. This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the two defendants. The case was submitted to the jury for a special verdict. The jury found, in effect, that plaintiff's injuries were occasioned by the negligence of the defendants, and that, by reason of said injuries, the plaintiff had been damaged in the sum of $8,000. Judgment was entered in favor of the plaintiff and against both of the defendants pursuant to the verdict. The defendants moved in the alternative for judgment notwithstanding the verdict or for a new trial. The motion was denied, and the defendants have appealed from the judgment and from the order denying such motion.

The facts as shown by the evidence, and as found by the jury in the special verdict, are substantially as follows: On October 19, 1918, the plaintiff, being then about 28 years old, entered into the employment of the Director General as a wiper in the Minneapolis, St. Paul & Sault Ste. Marie Railway Company’s roundhouse at Bismarck, N. D. About a week later he was made a fireman, and continued to work in that capacity up to and including December 25, 1918, when he received the injuries for which recovery is sought in this action. He made several trips as fireman on one of the locomotives on the Missouri River division of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company’s railroad from Bismarck to Wishek, Kulm, and other points, and continued as such fireman on one of the locomotives of that railway company until the date ‘of the accident. About December 18, 1918, the plaintiff was ordered to go to Wilton, N. D., and he was there directed to work as fireman on engine No. 35 of said railway company, which engine was leased or assigned to work for the defendant coal company in connection with the operation of its coal mines. He continued to fire that engine from the 18th of December, 1918, until the morning of the 25th of December, 1918, when he sustained the injuries which form the basis of this action.

The Minneapolis, St. Paul & Sault Ste. Marie Railway Company owns a line of railroad running from Bismarck north through the village of Wilton. At the time of the accident that line of railroad was under the control of, and was being operated by, the Director General. The