Page:North Dakota Reports (vol. 2).pdf/145

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BENNETT v. NORTHEBN PACIFIC RAILROAD CO.
119

his failure to discover and remedy which the company would be responsible; and yet for the master to insist that a trainman or a switchman should be held to the obligation of making such an investigation as would result in their disclosure would seriously cripple the power of the company to handle and ship the freight intrusted to it. It would be an unreasonable and impracticable requirement that all the dangers to an employe which a proper car inspection should bring to light should be discovered every time two cars are coupled together, or one car is coupled to a locomotive. It would be exacting of the trainman or the switchman more onerous duties than those imposed upon the expert car inspector. The company would require the less expert servant to discover at his peril a defect which the more expert employe had failed to detect. With less skill in snch matters, and less time to investigate, it would be a gross wrong to allow the master to dictate to his servant the condition that he would have no redress for the injury occasioned by the master's carelessness because he, the servant, had not complied with a regulation which it would be impossible for him to ob- serve. But it is within the domain of possibility for the em-

  • ploye to obey this rule, when reasonably construed. There are

defects which will appear when extra care is used. We think the reasonable construction of this rule is that more than ordinary care must be exercised by the employe; that he may not rely implicitly upon the uniform discharge by the master, through his servants, of the duty of using ordinary care in furnishing proper and safe appliances and machinery, and in keeping them in repair, and that he must in some measure be on his guard against injury from the occasional negligence of those who are charged with the performance of the master's duties to his employes. No matter what degree of care is exercised in the selection of the servants by whom these master's duties are to be discharged, negligence will sometimes characterize their conduct. Said the court in Smith v. Potter, 46 Mich. 258, 9 N. W. Rep. 273: "When a brakeman handles any car, he knows that there is at least a possibility that he may be injured unless he examines it carefully. It may not always be legal negligence in him to rely with some assurance on the accuracy of the