stead of being exclusively liable for his own negligence, finds that beyond him is another liability, s0 much more desirable to the injured servant that the careless servant is invariably lost sight of—the liability of the corporation, against which the verdict is more easily secured, and, when obtained, is certain of payment.
We have assumed that our statutes on this question (§ 3753 Comp. Laws) are only declaratory of the common law. But we do not decide whether they limit the liability of a master. They certainly impose upon him no greater responsibility than the common law, and, as the question of their restrictive force has not been discussed, we do not decide it. See Herbert v. Railroad Co.,3 Dak. 38,13 N. W. Rep. 349, on appeal 116 U. S. 642 6 Sup. Ct. Rep. 590, and dissenting opinion. We are clear that the trial court erred in refusing to charge the jury that the negligence of Withnell in failing to block the pile was the negligence of a fellow-servant, and in instructing them that it was not; and for this error the judgment of the district court is reversed. There are other questions in the case, on which we refrain from expressing any opinion, as the evidence on a new trial may be materially different. This does not apply to the question of interest, and we therefore hold that the trial court erred in charging the jury to give the plaintiff interest on his recovery, without submitting it to their discretion. “In an action for the breach of an obligation not rising from contract, * * * interest may be given in the discretion of the jury.” § 4578, Comp. Laws. Judgment reversed, and new trial ordered. All concur.
