prohibit the ereçtion of any such switch stand within less than six feet of the track.
4 In an action for damages upon the ground of a neglect of duty on the part of the defendant, it must appear that the neglect of duty was not only the cause, but the proximate cause, of the injury; but, to enable a defendant to shield himself behind an intervening cause, such intervening cause must be one that severs the connection of cause and effect between the negligent act and the injury.
5. Where the negligent act of one responsible party concurs with the negligent act of another responsible party in producing an indivisible injury to a blameless third party, such third party has his right of action against either of the negligent parties.
6. While the statute requires the charge of the trial judge to the jury to be exclusively in writing, yet where a party sits by and hears the trial judge give the jury parol instructions, and fails to object thereto at the time and upon that ground, he is conclusively presumed to have waived the error.
(Opinion Filed July 31, 1891. Re-hearing Denied Aug. 29, 1891.)
APPEAL from district court, Cass county; Hon. WILLIAM B. MOCONNELL, Judge.
John C. Bullitt, Jr., and Ball & Smith, for appellant. Taylor Crum and S. G. Roberts, for respondent.
Action by Herman Boss against the Northern Pacific Rail- roed Oompany for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Afirmed.
John C. Bullitt, Jr., and Ball & Smith for appellant:
Railroad companies have the unrestricted right to pat up structures on their right of way whenever and wherever they see fit, subject only to liability for such injuries as are caused by such structures to employes while engaged in their proper sphere of duty and to passengers while riding in their proper places on the cars. Gibson v. Railroad Co., 63 N. Y. 449; Randall v. Railroad Co., 109 U. S. 485; Railroad Co. v. Sentmeyer, 37 Am. Rep. 684. It is not necessary that an employe have actual knowledge of the defective structure or machinery. Bresnahan v. Railroad Co., 49 Mich. 410. In the case at bar it ap-
