3. The third question on the merits is whether plaintiff was precluded from recovery because he had violated defendant's rules, with which he was familiar. Of these, rule 28 is as follows: "Engines or cars must not be detached from a train while the train is moving." The court construed this rule as if "it refers to the movement of the train, and I do not think, taking the rules as a whole, that it was intended to apply, or that it does apply, to a brakeman who is engaged in switching on a side track." The general rules and special instructions in the return bear out this construction. It is provided, for example, that "in switching passenger train equipment cars must not be detached from the train while in motion." Inferentially, in cutting or switching freight train equipment, cars may be cut off while in motion. It is evident from the rules as a whole, that the term "train," as here used, did not refer to an engine and cars used in switching operations, but to the movements on the main line of a train from one station to another in the due course of transportation. Rule 2 is as follows: "You are forbidden to work on the side of cars or trains where there are buildings, sheds, cattle chutes, or other projecting structures. Always work on that side where there are no buildings or structures, and in getting on or off, or in riding on the side of moving cars, do so only at places where there are no obstructions alongside the track, such as buildings, structures, lumber piles, etc., that will make such work hazardous." The court charged the jury that "if the plaintiff had notice or knowledge of the fact that this platform existed there and that it was a dangerous platform * *

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he cannot recover in this action, because in that he was riding at a place on the car in violation of his contract and the rule of the company." This was a proper question of fact under the evidence; hence plaintiff could not properly have been held, as a matter of law, to have violated this rule.

In this connection plaintiff introduced some evidence tending to show that the rules had been habitually disregarded. We refer to that evidence only because its admission has been assigned as error. It was certainly competent for the plaintiff to show the abandonment of the rules. Alabama v. Bonner (Ala.) 39 South. 619. A recent and able summary of the law in this regard will be found in St. Louis v. Caraway, 77 Ark. 405, 91 S. W. 749. The only question here on this point is whether there was evidence enough of this kind to make out a case in this regard. The conclusion reached is the more convincing, in view of another consideration. Defendant's candor has compelled it to admit that it is a matter of common understanding that in switching yards cars are commonly uncoupled while in motion for the purpose of "kicking" them down the track unaccompanied by the engine. The universality of this custom is attested by scores of reported cases adjudicating the rights of parties to such casualties. The jury in this case believed that plaintiff had been directed to do so by the conductor. It is clear, in view of the previous discussion of the applicable rules, that plaintiff was not, as a matter of law, precluded from recovery because he acted, not only with the conductor's knowledge and acquiescence, but also reasonably in pursuance of the master's special command. Tullis v. Lake Erie & W. R. Co., 105 Fed. 554, 44 С. C. A. 597, at page 601.

4. The defendant insists that the verdict, being against the defendant railroad company only, exonerated Bennett, the conductor, and thereby exonerated this defendant likewise, and that the court, therefore, erred in not granting defendant's motion for judgment notwithstanding the verdict. The argument is that the company had warned the plaintiff generally as to structures like the platform in question, that this was all it could do in the way of giving warning, that the breach of duty to warn was Bennett's, and that, if Bennett were not liable, the company could not be liable, for any failure to warn. In this connection reference has been made to many cases which show that, if the only negligence to warn was that of Bennett, the failure of the jury to return a verdict against Bennett entitled the defendant to a directed verdict. In this particular case, however, the court submitted the question to the jury "whether it was the duty of the defendant Bennett" "that he inform the plaintiff of this platform or of its relation to the side track." It further charged that he [Bennett] was "simply required to exercise ordinary care in regard to that. In passing upon the question of his negligence, you have a right to consider what knowledge he may have had in regard to the plaintiff's previous experience as a freight brakeman, and especially in regard to his service on this particular line of road." The submission of this issue to the jury in this manner was not made the

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subject of specific objection, exception, or assignment of error. view of Bennett's testimony as to his knowledge of plaintiff's experience, and of the absence of evidence that it was Bennett's especial duty to warn plaintiff, it is clear that defendant was not entitled on this account to a directed verdict. See Clark v. City of Austin, 38 Minn. 487, 489, 38 N. W. 615; Thompson v. Chicago, St. P. & K. C. Ry. Co., 71 Minn. 89, 73 N. W. 707.

5. The next question on the merits concerns the abatement of the action. Defendant insists that the verdict should have been set aside and a new trial awarded under section 4503, R. L. 1905. That section is part of the local Lord Campbell's act. The particular proviso is: "Provided, that if an action for such injury shall have been commenced by such decedent, and not finally determined during his life, it may be continued by his personal representative for the benefit of the same persons and for recovery of the same damages as herein provided, and the court on motion may make an order allowing such continuance, and directing pleadings to be made and issues framed conformably to the practice in actions begun under this section." This proviso did not mean that the personal representative of the deceased may be substituted in the action commenced by the intestate, and prosecute his cause of action for damages for the benefit of the widow and next of kin, which would otherwise die with him. It authorizes the personal representative of the deceased, where the evidence warrants it, to be substituted as plaintiff in the original action brought by him, and to convert the action, by amendment of the pleadings, into an action for the benefit of the widow and next of kin. It does not authorize any such substitution for the purpose of prosecuting the original cause of action which accrued to the deceased in his lifetime. Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357, 104 Am. St. 665. Where, however, the cause of action which accrued to the injured person during his lifetime has been made the basis of an action to recover damages, and a verdict for the damages has been awarded therein, the effect of the death of the plaintiff is not governed by section 4503, but by the general sections governing ordinary civil actions. Under section 4064 it is provided, inter alia, that after the verdict, decision, or report of a referee fixing the amount of damages for a wrong, such action shall not abate by the death of any party thereto. Section 4503 applies where the plaintiff dies before verdict, and where the damages are unliquidated and unascertained, as in Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357, 104 Am. St. 665. Section 4064 applies where damages have been liquidated and ascertained by the verdict. The verdict becomes property and passes to the representatives, the same as though it had been reduced to judgment. Cooper v. St. Paul City Ry. Co., 55 Minn. 134, 56 N. W. 5883; Kent v. Chapel, 67 Minn. 420, 70 N. W. 2. The substitution in this case of the mother of the minor did not abate the action nor justify vacating the verdict.

6. Defendant also insists that the verdict of $35,000 is so excessive as to indicate passion or prejudice. There is no dispute that plaintiff's injuries resulted in indescribable anguish and in death. They were as serious as they could possibly have been. That they were necessarily fatal, or that only $5,000 could have been recovered by his administrator for the next of kin, does not constitute any reason whatever for holding the verdict improper. It has never been the law in this court that, the worse a servant is hurt by his master's negligence, the less he can recover. The fact that death was likely to result does not diminish the extent of the proper recovery. Plaintiff, surviving the casualty, had a cause of action totally different from that of his administrator on his death. See Mageau v. Great Northern Ry. Co., 103 Minn. 290, 115 N. W. 651. For his injury he was entitled to compensation. The greater the injury, the larger should the verdict be. In the present case, calculations of the value of the verdict, intelligently invested, show that the verdict was not unreasonable upon a strictly pecuniary basis. We know of no reason or authority for disturbing the verdict of this jury which the trial court refused to set aside. See Hall v. Chicago, B. & N. R. Co., 46 Minn. 439, 49 N. W. 239; Texas v. Kelly, 34 Tex. Civ. App. 21, 80 S. W. 1073; Gulf v. Shelton, 30 Tex. Civ. App. 72, 69 S. W. 653; Morhard v. Richmond, 111 App. Div. 353, 98 N. Y. Supp. 124; Smith v. Whittier, 95 Cal. 279, 30 Pac. 529; Huggard v. Glucose, 132 Iowa, 724, 109 N. W. 475; Retan v. Lake Shore, 94 Mich. 146, 53 N. W. 1094.

7. Because of the inconvenience, if not the impossibility, on account of plaintiff's physical condition, of having him in court at the trial, the judge, jury, and counsel repaired to his home and there took his testimony. At its close, despite defendant's objection, his body was uncovered and exposed to the jury. Defendant argues that the purpose of this view was not to instruct the jury as to the character of the injuries which they could not see, but to excite their sympathies. Even in this aspect, no prejudicial error appears; for the damages are not excessive. The objection, moreover, was not to taking the testimony of the witness at his house. In course of the testimony there was as much propriety in permitting defendant to exhibit his body as there would have been in the ordinary case in open

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8. A number of other assignments of error call for no extended discussion. The admission of evidence to show the feasibility of cutting doors in the end of the depot, so as to dispense with the platform; the instruction of the court as to statutory platforms, and its refusal to charge, as defendants requested on this point, practically that he could not recover because of proximity of platform, if error at all, which we doubt, was error without prejudice. The court repeatedly charged that the basis of actionable neglect was the proximity of the box car to the side of the platform and the failure to warn. That the platform was built in the wrong place was not the basis of defendant's negligence. So also if the court submitted to the jury some questions which it should have decided as of law, no prejudice appears. These and other assignments of error have been considered and found not to constitute reversible error.

Affirmed.