Page:North Dakota Reports (vol. 1).pdf/366

 It does not appear that the boss was present or that he had notice of the danger. The pieces for the trestle were furnished on the ground. All that remained was to put them together in place. The inference is, from the meagre statement of the case, that the boss was at another place on the work and knew nothing of the matter at the time. If he had personally stood by, overseeing the operation and having seen the danger carelessly omitted to warn his men then another and different question would have arisen.

In the Wisconsin case of Johnson v. Ashland Water Co. 45 N. W. 807, it is found that the foreman was personally engaged in the work himself, his crew consisting of himself in this instance, until he called Johnson to his assistance, who it was claimed was not a servant of the company. It does not appear that the foreman hired him or had authority to discharge him or even to direct him. It does not appear that Johnson was working in an elevated place on a narrow plank, nor that the foreman knew of his danger and having opportunity neglected to warn him.

, C. J. This litigation has its origin in an injury sustained by plaintiff while in the employ of the defendant. He, with several others, was engaged in removing long piles from a platform car to bents on the north side of the defendant’s track. These bents were heavy timbers resting on piles driven in the ground, and running at right angles with the track, and the ends nearest to the track were about five feet therefrom. They were the same height as the platform of the ear. At the time the accident occurred they were covered over with piles to within two feet from the ends nearest to the track. The piles were rolled from the car to the bents over two round skids about eight inches in diameter, one end of each of which rested upon a pile on the car, and the other upon the pile on the bents which was nearest to the track. Both ends of the skids were on the same level. Reaching from the platform of the car to the ends of the bents were boards a foot wide, over which the men passed from the car to the bents in rolling the piles along over the skids to the bents. In transferring the