tal in Brainerd, and who also examined him at the time of the trial, testified that he could discover no objective pain in the back, but that there was subjective pain manifested when the plaintiff was touched in other regions than that affected by the bruised area; that the knee reflexes were normal, and that the knee of which the plaintiff complained exhibited no swelling or soreness, but that in mobility and flexion there was possibly a little interference with motion. The plaintiff was shown to have made two trips from Mott to South Carolina accompanying shipments of horses, one in December, 1919, and one in January, 1920.
The appellant argues that the evidence of negligence is insufficient to form a question of fact for the jury. This question was presented to the trial court by motion for a directed verdict. We are of the opinion that no error was committed in denying the motion. The jury was warranted in believing the plaintiff’s testimony, to the effect that Jerden, at the time of directing him to go back and get the can, stated that he would wait for him. In view of this testimony we are not prepared to say that reasonable men might not find that the defendant, in the exercises of ordinary care for the plaintiff’s safety, should have held the car stationary awaiting the plaintiff’s return. When the plaintiff turned back, he would be more or less blinded by the storm, and, with Jerden’s statement in his mind, would not anticipate meeting the car moving toward him.
It is next argued that there is no proof that the plaintiff was engaged in interstate commerce at the time of the injury. This specification is without merit, as the same rule of liability obtains whether the plaintiff was engaged in interstate or intrastate commerce. No procedural question was raised, the solution of which was contingent upon any provision of the Federal Employers’ Liability Act.
In this case there was no motion for a new trial, so the question of the excessiveness of the damages urged by the appellant upon this appeal is not directly involved. There are a number of assignments, however, predicated upon the manner in which the case was submitted to the jury, in connection with which it is proper to refer to the measure of recovery as bearing upon the question of a fair trial. The verdict in this case was a special verdict. Twenty-seven questions were asked, all of which were answered in a manner favorable to the plaintiff. It is unnecessary here to indulge in any criticism of any of these ques-
