Soares

Plaintiff, as administratrix of the estate of 'Joseph C. Soares, recovered judgment in the sum of $1,500 as damages for his death caused by being struck, by a railroad train operated by the defendant as agent for the United States government under the federal transportation act of 1920 (U. S. Comp. Stats., Ann. Supp. 1923, see. 100713/4). The ease was tried without a jury and the trial court returned findings to the effect that the death, of Soares resulted from his being struck by a locomotive attached to a train and operated by the defendant and that it was caused by the negligence of the defendant, “by his negligent operation, direction and control of said engine and coaches and said railroad track.” The defendant had specially pleaded the defenses of contributory negligence and assumed risk, but upon these issues no findings were made.

Upon this appeal appellant assigns as error the failure of the trial court to find on these two special defenses, and error in the findings upon the defendant’s negligence. It is not necessary to discuss the points relating to the court’s failure to find upon the two special defenses because a review of the evidence conclusively shows that the…