Gardstrom

This action was commenced by plaintiff as administratrix on behalf of and for the benefit of the heirs of Werner Gardstrom, who, it is alleged, was killed while in defendant’s employment and through its negligence. At the close of plaintiff’s testimony the court granted defendant’s motion for a nonsuit made on the following grounds: “1. That none of the allegations of the complaint charging the defendant with negligence have been proven; 2. That the evidence that has been introduced regardless of the allegations of the complaint is totally insufficient to sustain any charge of negligence or to sustain a verdict; 3. Upon the ground that if the evidence shows any negligence whatever it was the negligence of a fellow employee of the deceased and therefore a verdict against the plaintiff (defendant?) would not be sustained thereon. ’ ’ A motion for a new trial was denied and defendant had judgment dismissing the action and for its costs. Plaintiff appeals from the judgment and order denying her motion for a new trial.

It is alleged in the complaint that, on May 28, 1910, plaintiff’s intestate was in the employ of defendant in the capacity of brakeman on a logging train operated in…