Page:North Dakota Reports (vol. 48).pdf/803

 O. L. OLSON, Appellant, v. G. L. HEMSLEY, Respondent.

(187 N. W. 147.)

Statement of facts.

1. Plaintiff brought an action against defendant to recover damages for the death of his son, alleged to have been caused by the negligence of the defendant. Defendant operated a grocery and soft drink parlor at Walhalla, North Dakota, and in the conduct of the business he employed with others, Plaintiff's sons, Clifford Olson age 16 years, 6 months and 12 days, and another boy Herbert Clements, age 13 years and 3 months. The latter while about to cash a check from one of the money drawers in the store called Clifford Olson to assist him, and while the latter was doing so, the Clements boy took from the drawer a loaded revolver, placed there by the defendant, rested it upon the drawer and it was discharged, the bullet entering the abdomen of Clifford Olson, killing him.

Statement of cause of action.

2. This action is to recover damages against the defendant for his negligence in keeping a loaded devolver where it was kept and where he knew it was accessible to the Clements boy who was known to him to be careless and reckless. A second cause of action is based on failure of defendant to comply with the Workmen's Compensation Fund, chap. 162 of the Session Laws of 1919. The plaintiff was required at the trial to elect on which cause of action he relied and elected to rely on the first.

Master and servant- negligence of employer keeping revolver accessible to youthful employee held for jury.

3. At the close of the plaintiff's case, defendant moved for a directed verdict in his favor, which motion was granted, and for reasons stated in the opinion it is held that this was reversible error.

Opinion filed Jan. 5, 1922. Rehearing denied Feb. 17, 1922.

Judgment reversed and case remanded for a new trial.

J. F. T. O'Connor and C. F. Peterson, for appellant.

If persons chargeable with a duty of care and caution towards them leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should