Stephen Johnson Field

“ Where the employe is not guilty of contributory negligence, no irresponsibility should be admitted for an injury to him caused by the defective condition of the machinery and instruments with which he is required to work, except it could not have been known nor guarded against by proper care and vigilance on the part of his employer. ”

“ We do not perceive that the provision of the sixth section of the Civil Code of Dakota, that in the territory 'there is no common law in any case where the law is declared by the Codes,' at all affects the question before us. ”

“ An employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employe. ”

“ It is contended, on behalf of the railroad company, that if it used ordinary care in the selection of the employe to whose negligence the plaintiff's injuries are attributed, it is protected from liability by section 1130 of the Dakota Code, even if such culpable employe had superior or controlling authority over the injured employe, and even if the injuries were caused by the defective condition of the appliances and machinery provided by the company through its agents for the use of the employe so injured ”

“ In one the master cannot escape the consequence of the agent's negligence; if the servant is injured in the other, he may.' And the court held that there was no error in a refusal to instruct the jury that the corporation was not liable unless the plaintiff proved that the president, directors, or superintendent either personally knew, or by the exercise of reasonable care in the performance of their duties might have known, of the existence of the defect in the engine which caused the explosion, or that the persons employed to have charge of the engine and keep it in repair were incompetent ”

“ It is equally well settled, however, that it is the duty of the employer to select and retain servants who are fitted and competent for the service, and to furnish sufficient and safe materials, machinery, or other means by which it is to be performed, and to keep them in repair and order. ”

“ They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require. ”

“ But that is the very case provided for by section 1130; and the doctrine of the court comes to this, in Dakota: that even though a railroad corporation, acting by its board of directors, exercises ordinary care in the selection of its employes ”