Page:North Dakota Reports (vol. 48).pdf/771

 it can be said as a matter of law that the plaintiff assented to a transfer to, and became an employee of, the coal company. We express no opinion as to the respective rights and obligations of the Director General and the coal company as those rights are fixed by the terms of the contract. That is a matter for them, and one which does not concern or affect the rights of the plaintiff in this action.

By their answers to the interrogatories in the special verdict, the jury found that the engineer was guilty of negligence in operating the engine at the speed at which it was being operated at and immediately preceding the time the accident occurred, and that this want of care on the engineer’s part contributed to plaintiff’s injuries. The jury also found that the plaintiff was not guilty of contributory negligence. In view of the facts and circumstances which the evidence tended to establish, and which have heretofore been alluded to, we are of the opinion that these findings of the jury have substantial support in the evidence. In other words, we are of the opinion that, under the evidence in the case, these were properly questions of fact for the jury.

The defendant coal company contends that the complaint fails to state facts sufficient to constitute a cause of action against it. It does not appear, however, that the question was raised in the court below either by demurrer or otherwise. This contention is based, primarily, upon the proposition that the complaint does not allege that the relation of master and servant existed between the plaintiff and the coal company at the time of the injury, but that, on the contrary, the complaint shows that that relation existed between the plaintiff and the Director General. This contention, in our opinion, is not well founded. While the coal company did not owe the plaintiff the duty which a master owes to a servant, it did owe him the duty to use reasonable care in conducting its operations, so far as they might, with reasonable probability affect others, even though they were not the servants of the coal company. Olson v. Phoenix Mfg. Co. et al., 103 Wis. 337, 79 N. W. 409.

It is undisputed that the plaintiff, at the time of the accident, was in a place where he had a lawful right to be, and was engaged in the performance of work which it was his duty to perform. The coal company knew that at a certain time in the morning of December 25, 1918, a train would come up from Wilton to take the night crew away from the mine. It knew that that train would come over a certain track which was used for that purpose. It is undisputed that the assistant weighmaster