Civil action in tort to recover damages for the death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect or default of defendant. *Page 804

Eugene Shutt, a man 34 years of age, had worked on defendant's farm for more than seven years and had been foreman of the place about three and one-half years, when on 29 September, 1923, while disking a field with a caterpillar tractor, preparatory to sowing grain, he was mortally injured in a fall beneath the tractor as it ran too near a ditch, the bank giving way and causing the tractor to turn over.

It is not alleged that the tractor was defective. Plaintiff bottoms his action on the alleged circumstance of negligence in that the defendant failed to warn the deceased of the soft ground and the danger of running too near the ditch.

At the close of plaintiff's evidence the defendant lodged a motion for judgment as in case of nonsuit, which was allowed. Plaintiff appeals, assigning error. Plaintiff's intestate was the victim of an unfortunate accident, but the evidence fails to disclose any liability on the part of the defendant.

Affirmed.