Page:North Dakota Reports (vol. 48).pdf/766

 a doctor’s office at Wilton, where he received first aid, and later was taken to a hospital in Bismarck, where he was confined for a period of some four weeks. Later he was under observation and treatment for a considerable period of time. While the plaintiff was in the hospital an X-ray photograph was taken, which showed a subluxation of a lumbar vertebra. And, according to the testimony of a medical expert, who testified upon the trial, the plaintiff’s efficiency has been greatly reduced by reason of such subluxation. According to the evidence, the plaintiff prior to the accident was in excellent health, but since the accident he has continually suffered severe pain in the back, and has been unable to perform any hard work without discomfort. He is com- pelled to wear a belt to support his spine, and has been troubled with a backache. His left leg is still stiff, and his back bothers him continually. For some six months after the injury he was unable to work at all, and, owing to his physical condition since, has not been, and it is not likely that he will ever be, able to return to his former occupation.

The plaintiff claims that he is entitled to a verdict against the defendant coal company and the Director General jointly for the damages which he has sustained. The defendants both deny liability. Each defendant, however, claims further that, in the event there is any liability, the other defendant alone is liable. In other words, the defendant Director General claims that the engine on which the plaintiff was working was at the time of the collision leased to the coal company; that the plaintiff at the time of the accident was an employee of the coal company, and not an employee of the Director General. The coal company, on the other hand, claims that at the time of the injury the plaintiff was an employee of the Director General; that the coal company had a perfect right to place the box cars where they were placed; that it was not negligent in doing so; and that it is in no manner liable to the plaintiff.

The evidence shows that on November 1, 1918, a written contract was entered into between the coal company on the one part and the Director General and railway company on the other part. The first paragraph of the contract sets forth the inducement:

“Whereas the coal company owns and is operating a lignite mine known as mine ‘No. 2,’ served by a spur track extending easterly from the main track of the railroad at Wilton, North Dakota, a distance of about three miles, with numerous sidings, which spur has a wye con-