(specially concurring). I concur in the affirmance of the judgment. This is the second time this case has been before this *701•court. See 41 N. D. 395, 170 N. W. 868. The jury returned a general verdict, and answered 12 special questions in plaintiff’s favor. The jury found that the switchmen of the defendant failed to give the decedent proper warning, and to notify him that the defendant was about to kick some cars along the lead track where he was Working; that the switching operation was not conducted in the ordinary and usual manner; that the switchmen and trainmen were negligent in the operation; that there was carelessness in the switching operations and of decedent’s fellow workmen. The jury also by its general verdict found that the decedent did not assume the risk, and that the defendant and the decedent were then engaged in interstate commerce. I am of the opinion that the findings of the jury find support in the evidence, and should not be disturbed. See Koofos v. G. N. Ry., 41 N. D. 176, 170 N. W. 859. I am of the opinion also that the trial court upon the record did not err in recognizing the capacity of the plaintiff to maintain this action, in receiving the deposition questioned, and in sustaining the amount of damages awarded by the jury.
Birdzell, J., concurs. Christianson, J.T agree that the motion to dismiss the appeal should be denied. The respondent contends that the appeal should be dismissed under the rule announced in Sucker State Drill Co. v. Brock, 18 N. D. 598, 120 N. W. 757. In my opinion this contention is without merit. In that case the undertaking made no reference to the appeal from the order denying a new trial. In this case the undertaking on appeal specifically refers to both the appeal from-the judgment and the appeal from the order denying the alternative motion for judgment notwithstanding the verdict or for a new trial. Under the rule announced in Sucker State Drill Co. v. Brock, supra, such undertaking is sufficient.
I agree with the majority members that the deceased was engaged in interstate commerce, and that the case falls within the provisions of the federal Employers’ Liability Act. I also agree that the verdict in this case cannot be said to be excessive as a matter of law.
. I do not agree, however, with the intimation in the principal opinion to the effect that United States Supreme Court placed an erroneous construction upon the federal Employers’ Liability Act when it ruled in Seaboard Air Line R. Co. v. Horton, 233 U. S. 493, 34 Sup. Ct. 635, 58 *702L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, and Jacobs v. Southern Ry. Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. ed. 970, that the defense of assumption of risk is available in cases arising under the Employers’ Liability Act, except where the violation by the carrier of a statute enacted for the safety of employees contributed to the injury or death of the employee. The proposition which has caused me the greatest difficulty is with respect to the sufficiency of the evidence to sustain the findings of the jury to the effect that the defendant was guilty of actionable negligence; and that the deceased did not assume the risk of the injury which caused his death.
Of course, negligence and assumption of risk are ordinarily questions for the jury, and it is only where the evidence is such that reasonable men in the exercise of reason and judgment can arrive at only one conclusion that they become questions of law. While I have considerable doubt as to the sufficiency of the evidence to support the findings of the jury upon these questions, I am not prepared to say that the jurors, the trial judge, and the majority members of this court are in error in reaching the conclusions which they did.
Birdzell, J., concurs.