On Petition for ¡Rehearing.
Per Curiam.Plaintiff has petitioned for a rehearing. Tbe petition assumes that tbe former decision held that tbe plaintiff was not engaged in interstate commerce. It is true tbe writer of tbe decision expressed this to be bis opinion, but 'the remaining members of tbe court did not do so. They deemed this to be immaterial and expressed no opinion on tbe question. They were all agreed that no act of negligence bad been shown. Hence, there was no liability on tbe part of tbe defendant either under tbe Federal or state law, and it was entirely immaterial which one was applied; for negligence is tbe basis of all liability under both laws, and there can be no recovery under either act in tbe absence of negligence on tbe part of tbe railroad company or some of its employees. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 501, 502, 58 L. ed. 1062, 1068, 1069, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Manson v. Great Northern R. Co. 31 N. D. 643, 649, 155 N. W. 32.
Complaint is also made of tbe fact that tbe former opinion quotes a portion of § 6107, Comp. Laws 1913. And it is asserted that this section “is a fellow servant statute, and states tbe fellow servant rule, which rule was expressly abrogated by tbe North Dakota and Federal railway statutes.” Section 6107 consists of two parts. The first part embodies tbe doctrine of assumption of risk, and tbe second part the fellow servant rule. Tbe two are entirely distinct. It is true tbe fellow servant rule has been abrogated by. both tbe state and Federal statutes. But tbe common-law defense of assumption of risk is still open to tbe defendant, except in case of violation of a statute passed for tbe protection of employees. Seaboard Air Line R. Co. v. Horton, and Manson v. Great Northern R. Co. supra. See also chap. 207, Laws 1915.
We adhere to our former conclusion, — plaintiff has failed to establish that be was injured by reason of any act of negligence on tbe part of tbe defendant or its employees.