Page:North Dakota Reports (vol. 1).pdf/364

 side pile, was not a duty which the railroad company owed to Ell. Possibly not, if every other act of negligence be eliminated from the case. But the case does not rest on that act alone. It was clearly the duty of Withnell, having charge of a crew of men performing a dangerous work in a dangerous place, to provide for their safety. This was an obligation of the company which it had delegated to him. He knew the log was not blocked. His attention was called to the fact before Ell was hurt. It is conceded that the log should have been blocked by some one. Ell testified, “it was the business of the foreman to block it.”

In Moore v. Railroad Co. 21 A. & E. R. RB. Cases 512, the supreme court of Missouri say: “It was the duty, a contractual obligation of the company, to provide for the safety of the men at work in repairing the car. The company devolved that duty upon the person who represented it in conducting, ordering and managing the work, and the men engaged in it.” The foreman of a crew of car repairers sent one of them to repair a car and neglected to set out signal flags. He failed to provide for the safety of his subordinate and although he was supplied with signal flags his negligence in failing to use them is held to be the negligence of the company. See Railroad Co. v. Lavalley, 5 A. & E. R. Cases 549; Abel v. Railroad Co. 28 A. & E. R. Cases 497 (N. Y.) In Bergmann v. Railroad Co. 41 Fed. 671, Judge Shiras says: ‘Where a given operation connected with a railway requires care and oversight for the proper performance thereof, and for that purpose there is placed in charge thereof one clothed with the duty of supervising and managing the given work, having the power of control and direction over those employed in*the details of the same, who in turn are expected to obey the orders and instructions of the former, such person, in carrying out the duty of control, supervision and management, represents the company, and for his negligence in the performance thereof the company is responsible.”

Withnell’s work was one of superintendence; from his position he directed the movements of his men. If he knew, or by the use of diligence might have known of the existence of danger to those engaged in the work, it was his bounden duty to