Page:North Dakota Reports (vol. 48).pdf/85

 Trial—in submitting case for special verdict, it is error to read pleadings or the statutory law to the jury.

2. In submitting a case to a jury for a special verdict, it is error to read the pleadings, stating the issue of fact, the contentions of the respective parties with reference thereto, and to read to the jury the statutory law upon which the plaintiff relies for recovery. Whether such error in all cases be so prejudicial as to necessitate reversal, however, is not decided.

Trial—in action for personal injuries, appeal for damages on basis of what jury would take to be injured in same manner held improper.

3. In an action for damages for personal injuries it is improper, in an argument to the jury, to appeal for an assessment of damages on the basis of what they would take to be injured in the same manner that the plaintiff was injured.

Appeal and error — errors held to require new trial in railroad carpenter's action for personal injury.

4. Where, in connection with the above error in submitting the case for a special verdict, no instructions are given as to the measure of damages, and where the plaintiff’s attorney is shown to have made improper appeals to the jury, and the jury, upon conflicting evidence as to the character and permanency of plaintiff’s injury, assessed damages at $4,500, the record does not give the assurance that the defendant has had a fair trial, and a new trial is awarded.

Appeal from the District Court of Hettinger County. Lembke, J. Reversed and remanded.

Young, Conmy & Young, for appellants.

The evidence must affirmatively establish circumstances from which the inference arises fairly that the accident resulted from the want of some precaution which the defendant ought to have taken. Wabash, St. L. & P. R. Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193, 14 N. E. 391 ind cases cited.

There is no proof showing parties were engaged in interstate commerce at the time of the injury. Illinois C. R. Co. v. Behrens, 233 U. S. 473; Delaware L. & W. R. Co. v. Yurkonis, 238 U. S. 439; Shanks v. Delaware L. & W. R. Co. 239 U. S. 558-560.

The court erred in failing to charge the jury fully on the issue of assumed risk. Putnam v. Prouty, 24 N. D. 517; Seekett v. Stone, 41