*842Statement.
Bronson, J.In a civil action for damages under the Federal Employer’s Liability Act, plaintiff recovered a verdict for $3,500 against a common carrier. Defendant has appealed from the judgment.
The facts are: Defendant is the presidential agent of the carrier under the Federal Transportation Act. From about September 1st, 1919, to March 13th 1920, while the carrier was under Federal control, plaintiff worked as a car repair man in the yards of the carrier at Willis-ton. There the carrier has its division point. There, in its railroad *843yards, tbe carrier maintained repair or rip tracks for purposes of repairing cars in bad order. There it repaired foreign cars and cars of its own. These rip tracks were not inclosed. Plaintiff’s duties consisted in making repairs upon cars placed upon such rip tracks. . On February 18th, 1920, a gondola car loaded with coal from Wolf Point, Montana, arrived at Williston. It was in bad order. In accordance with the testimony of the carrier, this was the carrier’s car. Plaintiff gave testimony to the effect that it was a foreign car. This car was sent to the coal chute of the carrier and the coal there unloaded on February 19th, 1920. Then it was taken to the rip tracks. Plaintiff and another coworker were directed to repair this car. The needed repair was the installation of a new draft timber at the end of the car. It was necessary to prepare such draft timber. On February 20th, 1920, plaintiff and his coworker started upon this work of repair. They picked out an oak timber, about 8 x 12, 12 feet long. The carrier furnished the materials, the tools, and instrumentalities. On the morning of February 21st, 1920, they started active work upon the timber to prepare the same for installation in this gondola car. They worked in the open between the rip tracks. The ground was covered with smooth, slippery ice from snow that had been there throughout the winter and which had melted and frozen again. Upon this ice, there being no other place near the car, this oak timber was placed upon two wooden horses. It was necessary to bore some holes in the timber, insert some eight bolts, fasten with the same nuts thereon, and fashion the timber for a lug-casting. The weather was cold; there was frost on the horses, the timber and the bolts. Plaintiff’s coworker was using .a wrench that was so worn that it did not grasp or hold the nut securely. While the plaintiff and his coworker were working on opposite sides of this timber tightening these bolts, the wrench of the coworker slipped, the timber slipped off one of the horses and struck the shin bone of plaintiff’s right limb. Plaintiff saw the doctor of the carrier who dressed the leg and put bandages upon it. He was advised that the leg was all right and that he could go to work. Plaintiff continued to work until March 13th, 1920, receiving treatment from the company doctor from time to time. Later, the leg became infected and was subjected to many operations which, in accordance with the testimony, occasioned both permanent impairment *844and disfigurement. In accordance with the carrier’s testimony, this gondola car, after being repaired, was loaded with cinders and taken, on February 25th, 1920, intrastate from Williston destined to Niobe, North Dakota. In the complaint, plaintiff specifically alleges that the action is brought under the provisions of the Federal Employer’s Liability Act. lie alleges negligence of the carrier concerning the place where plaintiff worked and was ordered to work; concerning- defective and unsafe tools with which plaintiff and his coworker were furnished and did their work, and concerning the negligence of plaintiff’s coworker. The carrier, in its answer, alleges that plaintiff instituted the action fraudulently for the purpose of depriving the defendant of its constitutional right to remove the case to the Federal court; further, that the plaintiff, at the time of his injury, was not then employed in interstate commerce; that plaintiff’s injuries resulted from his own contributory negligence and through risks assumed by him.
During the trial, plaintiff introduced into the evidence over objection two letters from a person at Niobe, North Dakota, purporting to be the agent of the Great Northern Railway Company to the effect that such agent had no record there of the car which the carrier claimed was the gondola in bad order. At the close of plaintiff’s case defendant moved for a dismissal upon grounds that plaintiff, at the time of his injury, was not employed in interstate commerce; that the cause of action pleaded was not proved; that no negligence was shown on the part of the defendant; that the injuries received were the result of a mere accident ; that plaintiff assumed the risks and was guilty of contributory negligence. At the close of the testimony, defendant again moved for a dismissal upon grounds that plaintiff, by false allegations, had deprived defendant of its constitutional right to remove the cause; that plaintiff, at the time of the injury, was not engaged in interstate commerce; that no negligence of the defendant was established; that the plaintiff assumed the risks. No motion was made for a directed verdict or for a new trial. The instructions of the trial court have neither been settled nor returned. The principal contentions of the carrier are that, upon the record, plaintiff was not employed in interstate commerce at the time of his injury; that defendant was fraudulently deprived of a right of removal; that no negligence of the defendant was established; that *845plaintiff assumed tbe risks; that the trial court erred in receiving the letters mentioned.
Opinion.
This court has frequently held that the sufficiency of the evidence to support the verdict is not subject to review where neither a motion for a directed verdict or for a new trial has been made. Horton v. Wright, B. & S. Co. 43 N. D. 114, 116, 174 N. W. 67; Lofthouse v. Galesburg, 48 N. D. 1019, 188 N. W. 585; Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N. D. 366, 155 N. W. 861; Erickson v. Wiper, 33 N. D. 193, 221, 225, 157 N. W. 592; Buchanan v. Occident Elevator Co. 33 N. D. 346, 350, 157 N. W. 122; Freerks v. Nurnberg, 33 N. D. 587, 595, 157 N. W. 119. At the close of plaintiffs case, and at the close of the testimony, plaintiff made a motion for dismissal. A motion for dismissal and a motion for a directed verdict are both, in fact, demurrers to the evidence. 38 Cyc. 1551, 15G5. They are, however, not the same. The former is generally less hazardous to plaintiff’s rights than the latter. Sorenson v. Smith, 65 Or. 78, 51 L.R.A.(N.S.) 612, 129 Pac. 757, 131 Pac. 1022, Ann. Cas. 1915A, 1127. The former under code procedure generally seeks a nonsuit; 7 Enc. Pl. & Pr. 829; the latter, a fact determination by the jury. The former seeks action of the court without a jury, the latter, action by the jury upon peremptory instructions. Our statutes recognize a distinction between the motions by providing for motions of dismissal and motions for directed verdicts and, the effect of each. Comp. Laws, 1913, §§ 7597, 7643; Laws 1921, chap. 133. A motion for a directed verdict supersedes a motion for dismissal or nonsuit. 26 R. C. L. 1066.
Accordingly, upon technical grounds, the sufficiency of the evidence concerning the carrier’s negligence or plaintiff’s assumption of the risk is not before this court for review. Apparently, at the trial, the defendant advisedly made its motions, as motions for dismissal. Now, before this court, by challenging the sufficiency of the evidence to justify the verdict, it seeks a final determination upon the merits of the facts pleaded and proved, whether considered under the Federal, or the state, acts. However, we are not disposed, upon mere technical grounds, to deny defendant a review of the sufficiency of such evidence to establish *846a cause of action cither under the Federal or the state acts where it seeks so to do. We have, accordingly, reviewed the entire record. We do not hesitate to express considerable doubt concerning the sufficiency of the evidence to justify the jury’s findings of defendant’s negligence and plaintiff’s nonassumption of the risk. Whether under1 the circumstances defendant exercised that reasonable care required concerning the place where plaintiff worked and in furnishing proper tools and instrumentalities, is indeed a close question. Likewise, the question of whether or not the plaintiff, through his experience and the manner of the work, did not assume the risk. The condition of the place where plaintiff was working in connection with the work he was then and there requested or permitted to do was more or less hazardous. The wrench \ised by plaintiff’s coworker, if worn and defective, increased the hazard in connection with this particular work at the particular place. It is deemed unnecessary to restate the well-known fundamental rules applicable between master and servant in such situation. After full consideration we are of the opinion that the minds .of men might reasonably differ and draw different conclusions upon the question whether there were acts of negligence by defendant and assumption of risk by plaintiff at the time and place where the injury occurred. Accordingly, we are not prepared, as a matter of law, to disturb the verdict returned. See Schantz v. Northern P. R Co. 42 N. D. 377, 173 N. W. 556, id. 47 N. D. 1, 180 N. W. 517; Koofos v. Great Northern R. Co. 41 N. D. 176, 170 N. W. 859; Abelstad v. Johnson, 41 N. D. 399, 170 N. W. 619; Karas v. MacAdoo, 46 N. D. 344, 179 N. W. 710.
It is a serious question, upon the record, whether plaintiff, at the time of his injury, was engaged in interstate commerce or in work so closely related to it as to be practically a part of it. Shanks v. Delaware, L. & W. R. Co. 239 U. S. 556, 558, 60 L. ed. 436, L.RA.1916C, 797, 36 Sup. Ct. Rep. 188; Industrial Acci. Commission v. Davis (May 29th, 1922), 259 U. S. 182, 66 L. ed. 888, 42 Sup. Ct. Rep. 489; Southern P. Co. v. Industrial Acci. Commission, 10 A.L.R. 1181 and note, (251 U. S. 259, 64 L. ed. 258, 40 Sup. Ct. Rep. 130). The jury, pursuant to a special question, found that the plaintiff was employed in interstate commerce. However, upon the record, this was a question of law. Kanable v. Great Northern R. Co. 45 N. D. 619, 178 N. W. 1000. We are of the opinion that it is unnecessary to determine this *847question. We are satisfied, upon tbe record, that plaintiff’s cause of action, as proved at the trial, if considered not to be within the terms of the Federal act because he was not then engaged in interstate commerce, in any event, falls within the terms of the state statute. N. D. Laws 1915, chap. 207. The state statute uses practically the same identical language as the Federal act; it changes only the language of the Federal act to the extent necessary for the purposes of making the same a law of this state. Apparently, it has been copied directly from the Federal act. See Froelich v. Northern P. R. Co. 42 N. D. 550, 173 N. W. 831. Upon the facts as pleaded and proved, plaintiff’s cause of action, whether within the Federal act or the state act, was, in either event, within and subject to the jurisdiction of the state court. If the pleading had directly alleged that it was subject to the state act and the facts, as pleaded and proved, disclosed that plaintiff, as a matter of law, was engaged in interstate commerce at the time of his injury, the Federal act, by force of its superiority would have applied. See Schantz v. Northern P. R. Co. 42 N. D. 377, 386, 173 N. W. 556; Froelich v. Northern P. R. Co., supra, and cases cited. It is not contended that, if the provisions of the state act had been applied, the result of the action would have been in any manner different. See North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. 19140, 159, 9 N. C. C. A. 109. It is defendant’s contention that, fraudulently, it was deprived of a right of removal into the Federal courts.
We are clearly of the opinion that, upon this record, defendant is not in a position to successfully assert any such contention. It has waived this right, if any it had. This record does not disclose that the defendant at any time has presented or filed any petition or bond for removal of this cause. There is no proof whatever of any fraudulent attempt by plaintiff to prevent a removal. The record simply discloses an allegation by defendant in its answer to that effect without any proof whatever to support it. Throughout the trial and before this court plaintiff has consistently maintained that plaintiff, at time of his' injury, was then engaged in an act concerning interstate commerce. The fact that plaintiff specifically alleged his cause of action to be under the Federal act, and that this thereby gave to him a prima facie right to maintain such action in the state court without a right of removal upon *848tbe pleading, did not foreclose defendant’s right of removal, afterwards, upon taking proper steps so to do when it might clearly appear that the right of removal existed. Great Northern R. Co. v. Alexander, 246 U. S. 276, 62 L. ed. 713, 38 Sup. Ct. Rep. 237; Northern P. R. Co. v. Austin, 135 U. S. 315, 34 L. ed. 218, 10 Sup. Ct. Rep. 758. But, this, tho defendant has failed to- do. Furthermore, it has sought in a state court to secure a determination upon the merits. See Great Northern R. Co. v. Alexander, supra.
The reception in evidence of the letters was error. They were incompetent until identified and agency established. But, in view of our determination herein, the error was without prejudice. They concerned, remotely, the question of whether the car involved was then engaged in interstate commerce. Error predicated concerning the instructions cannot be reviewed in the absence of their return and settlement. Otherwise, defendant objects to testimony received concerning foreign cars being in the carrier’s yards; to the introduction of a photograph showing the present condition of plaintiff’s limb; and to testimony of the plaintiff concerning directions he took or received from his coworker. These objections are without merit in view of the determination heroin made.
The judgment is affirmed with costs.
Guace, J., concurs. Bikdzell, Oh. J., dissents.