Page:North Dakota Reports (vol. 48).pdf/765

 defendant coal company owns and is operating a lignite mine situated about three miles east of Wilton. That mine is served by a spur track extending easterly from the main line of said railway company’s railroad at Wilton. Such spur track has a wye connection with the main line. The greater portion of the spur track is owned by the railway company, but a portion thereof running from and adjacent to the mine is owned by the coal company. The coal was hauled from the mine, and the workmen were taken to and from the mine, by locomotives and cars furnished by the defendant Director General; such locomotives and cars were operated by crews furnished by the defendant Director General to the coal company under a written agreement which will hereafter be more fully considered. Such spur track has a main track, and there are numerous sidings, especially at the end near the mine.

Early in the morning of December 25, 1918, the plaintiff fired up the engine, and it, being attached to the tender and passenger coach, was pulled out on the main spur track from Wilton to the coal mine. One Johnson was the engineer, and the plaintiff was fireman, and the train was being taken down to the coal mine for the purpose of taking the night crew away from the mine. The train started between 5 and 6 o’clock that morning. There was a fog which rendered it somewhat difficult to see. The rails were frosty, and it was necessary to use the headlight. When the train had run about one and a half miles from the point from where it started there suddenly appeared out of the fog, within a distance of about 300 feet certain box cars which had come over the switch from the tipple. When the box cars were observed the train was going down an incline, and was traveling at a rate of speed of about 20 miles an hour or over. When the engineer noticed the cars, he called to the plaintiff, saying, in substance: There are some box cars on the track ahead, “let’s get out of here!” The plaintiff, too, saw the cars about the same time that the engineer saw them. The plaintiff testified that the gangway on his side of the cab was obstructed by a heavy canvas, supported by a rod firmly fastened and frozen to the floor; that he could not get out on his side of the cab, and for that reason jumped out of the window. The engineer, however, stepped out through the gangway on his side of the cab. The evidence shows that the engine crashed into the loaded cars about 80 feet from the point where Asch jumped out.

The plaintiff became unconscious, and was picked up and taken to