Page:North Dakota Reports (vol. 48).pdf/781

 Ramstad was one of the physicians so appointed, and that he, with the other physicians, examined the plaintiff. In his closing argument plaintiff’s counsel commented on the failure of the defendants to call Dr. Ramstad as a witness. Defendants’ counsel excepted to this statement. Plaintiff’s counsel thereupon stated that he had made the statement in answer to statements made by defendants’ counsel during his argument to the jury; that during such argument defendants’ counsel had commented on the fact that the plaintiff had failed to call Dr. Ramstad, the doctor who examined plaintiff when he was brought to the hospital, and that he (plaintiff's counsel) therefore, by way of reply to defendants’ counsel, called the attention of the jurv 70 the fact that Dr. Ramstad had not been called by the defendants either, although he had been available to them. The trial court thereupon said:

“Gentlemen of the jury, you are instructed by the court to disregard any statement of counsel that is not contained in the evidence. You will remember what the evidence is and be guided solely by the evidence in the case.”

We are entirely satisfied that the record so presented to us does not disclose any prejudicial error. See Erickson v. Wiper, 33 N. D. 193, 222, 224, 157 N. W. 592.

The defendant coal company asserts that it is in any event relieved from liability by reason of the fellow-servant doctrine. We find it unnecessary to determine whether that doctrine is applicable where a coal company, incidental to its business, engages in railroading. It is sufficient to say that upon the trial, as well as in this court, the coal company asserted that the plaintiff was not its employee, but the employee of the kailway Administration, and that was the finding of the jury. The duty which the coal company owed to the plaintiff, and the legal rules fixing its liability, have already been alluded to, and need not be restated here.

The defendant coal company also asserts that the verdict is excessive. Reference has already been made to the nature of plaintiff’s injuries as disclosed by the evidence. We are of the opinion that the amount fixed by the jury is not so large as to justify this court in interfering therewith.

This disposes of all the errors assigned and argued. It follows from