S. E. 564; Robertson v. Burton (Minn.) 92 N. W. 538, 931; B. & O. R. Co. v. Lockwood, 74 N. E. 1071.
Jacobsen & Murray, for plaintiff.
Without a motion for a new trial, this court cannot consider the question of the insufficiency of the evidence. Erickson v. Wiper, 33 N. D. 225; Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N. D. 366.
A motion for a directed verdict must specify the particulars wherein the evidence is insufficient. Yaeger v. South Dakota C. R. Co. (S. D.) 140 N. W. 690; Minder & Jorgenson Land Co. v. Brustuen (S. D.) 140 N. W. 251; Davis v. C. & J. Michel Brewing Co. (S. D.) 140 N. W. 694; Erickson v. Wiper, 33 N. D. 193.
The insufficiency of the proof establishing interstate commerce was in no shape, form, or manner raised in the lower court. The rule is well settled that the appellate court will consider only the ground urged in the trial court. Erickson v. Wiper, 33 N. D. 225.
In any event, failure to establish parties engaged in interstate commerce is wholly immaterial if the plaintiff has established his case under the state statute or common law. Wabash R. Co. v. Hayes, 235 U. S. 86, 58 L. ed. 1226, 1230.
The Federal authorities are uniform upon the proposition that going to and from work is just the same as being engaged in that work. North Carolina R. Co. v. Zachary, 232 U. S. 246, 58 L. ed. 591; Southern R. Co. v. Puckett, 37 Sup. Ct. Rep. 703.
Birdzell, J. This is an appeal from a judgment in favor of the plaintiff for $4,559.50, in an action to recover damages for personal injuries. The plaintiff was in the employ of the defendant as a carpenter on April 7, 1919. On that day he was traveling, with his foreman Jerden, between Mercer and McClusky, on a speeder, a small car propelled by a gasoline motor. They were going east, facing a severe storm of wind and snow. When they were near the station of Pickersville the wind blew a gas can off the speeder. Jerden stopped the car and asked Daniels, the plaintiff, to go back and pick up the can. Daniels walked back a distance, as he testified, of approximately 100 yards (Jerden testifies about 200 feet), picked up the can, and, as he was turning around, the speeder struck him, knocking him down, injuring his back, cutting his head and his chin, and knocking out some of his upper teeth. He was rendered unconscious by the impact, was picked
