Gates v. Chicago, M. & St. P. Ry. Co.

Citations

• 4 S.D. 433
• 57 N.W. 200
• 1893 S.D. LEXIS 93

Syllabus

<p>1. A railroad company having erected on its right of way a derrick which, under certain conditions, was dangerous, it was its duty to see that it was properly taken care of, and for any injury directly resulting from such derrick being- negligently left in condition to cause damage, the company is primarily or presumptively liable.</p> <p>2. While, as between itself and an employe, the company might avoid liability by showing- that it had placed such derrick under the charge of a competent person, who was a fellow servant of the person injured, and whose negligence caused the injury, it was not incumbent on the plaintiff to show affirmatively that it had not done so, in order to make a case of negligence against the company.</p> <p>3. The fact that, unon its completion, the mechanic who constructed such derrick for the company, and whoso authority or relation to the company is not further shown, called out the station agent, and explained to him and others who were expected to use the same the manner of its working, and of fastening it when not in use, is not conclusive upon the jury that the derrick was thus placed by the company under the care of such station agent.</p> <p>4. It will not be presumed as a matter of law that the’ station agent, by virtue of his relation to the company, was charged with the duty of seeing that such unusual and extraordinary appliance as this was shown to be was kept in safe and proper condition.</p> <p>(Syllabus by the Court.</p>