(specially concurring). This action is one to recover damages for injuries alleged to have been caused by the negligence of the defendants, the nature of which is alleged in the complaint. The defense is contributory negligence and assumption of risk.
We presume, under our statutes, in that regard, those defenses ara *241available to defendants. The statutes are, as we view the matter, largely declaratory of the common-law doctrine in regard to those subjects. It is very questionable whether it can be said that the common-law rule is based upon any clear principle of justice and right.
Quite an extensive discussion in this regard is contained in the case of Peterson v. Fargo-Moorhead Street R. Co. 37 N. D. 440, 164 N. W. 42. However, considering the question of assumption of risk and contributory negligence proper defenses, under our statutes, in the circumstances of this case it is clear that they are questions of fact for the jury-
Whether defendant neglected to use ordinary care in retaining the services of Heine, and whether plaintiff was injured by the latter’s negligence, were, we think, in the state of the evidence, questions of fact for the jury.