there is no proof that he knew or appreciated, and hence he did not assume it.
The question of assumption of risk was an issue in the case, and an issue of fact for the jury. Its verdict was in favor of plaintiff, and it must be assumed that it, under the evidence, found the risk was extraordinary, and that the deceased did not assume it. The answers to the special interrogatories established beyond question the negligence of the switching crew, and that the switching operation was not conducted in the ordinary and usual manner. They further established that Nardella exercised such care for his personal safety as an ordinary person employed in switching would exercise.
The defendant contends that the verdict is excessive, and that there is no proof of a proper measure of damages, and that the instruction in respect to the proper measure of damages is erroneous. We are of the opinion there is no merit in these contentions, and that the instruction in this respect was not erroneous. The part of the instruction complained of is as follows:
“The measure of damages in this action, if you find for the plaintiff, is the financial benefit which might reasonably be expected by the widow and the children fram the deceased, Luigi Nardella, in a pecuniary way had he not been killed. The damages of the beneficiaries are limited to their pecuniary loss sustained by the death of the deceased. The damages assessed, if you find for the plaintiff, cannot in any event, exceed $35,000
Under the rule announced in Michigan Centrat Railroad Co. v. Vreeland, 227 U. S. 59, 33 Stip. Ct. 192, 57 L. ed. 417, Ann. Cas. 1914C, 176; American Railroad Co. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 1,. ed. 456; Gulf Colorado Railway Co. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. ed. 785—we are of the opinion the instruction was not erroneous. The evidence discloses that the deceased was the father of three children, one of whom was more than 30 years of age and not dependent on the father for support at the time of the bringing of the action; another at that time was deceased; the third, a boy, was about 17 years of age, and the evidence shows that he was to some extent dependent for his support.
The verdict was for a gross amount, $4,000. It found that neither the girl nor the boy was entitled to recover anything, but that the widow was entitled to recover $4,000. The verdict in every respect corresponds
