Gates v. Chicago, Milwaukee & St. Paul Railway Co.

Citations

• 2 S.D. 422
• 50 N.W. 907
• 1892 S.D. LEXIS 5

Syllabus

<p>1. The law as between master and servant not only imposes upon the employer the duty of using reasonable care in providing safe and proper machinery, but also reasonable care in placing the same under the control of a competent servant or employe charged with the duty of properly attending to the same, and seeing that it is properly used for the safety of employes, and, when not in use, is properly and safely secured. And not only must the employer use reasonable care in selecting a competent servant to take charge of the machinery but the same care must be exercised in continuing him in the service; otherwise the employer will become responsible for his care and skill.</p> <p>2. ' There was evidence in this case tending to prove that a derrick had been erected by the company on the line of its side track, which, when not properly secured when not in use, was dangerous to employes of the company by reason of the arm of the derrick — -to which was suspended a heavy iron hook, pulley and chain — swinging over the track. Held, that it was the duty of defendant to place such machinery under the control of a competent servant or employe charged with the duty of seeing that it was properly secured when not in use, and, it not being shown in this case that the machinery in question was so placed in charge of any such servant or employe, there was evidence from which a jury might properly find negligence on the part of the defendant in causing the injury where a brakeman of the company, while on duty, and without fault on his part, was injured by reason of the derrick, not being properly fastened, swinging over the track.</p> <p>3. Where a derrick had been erected by defendant on the line of its sidetrack near a station, — in July, — which derrick was used by shippers, and was sometimes secured after being used and sometimes left unfastened, from that time to the time of the accident, held, that the defendant must be presumed to have known the manner of its use and the c