Page:North Dakota Reports (vol. 48).pdf/804

 expect that liberty to be taken. Powers v. Harlow, 53 Mich., 507, 31 Am. Rep. 154; Harriman v. Pittsburgh, C. & St. L. R. Co. 9 West Rep. 438, 45 Ohio St. 11; Lane v. Atlantic Works, 111 Masc. 133.

The law requires of persons having in their custody instruments of danger that they should keep them with the utmost care. Dixon v. Bell, 3 Nanlo & S. 198; Lynch v. Nurdin 1 Q. B. 29, Tally v. Ayres, 3 Snood, 677; Morgan v. Cox, 28 Mo. 373, 62 Am. Dec. 623; Tally v. Ayres, 3 Snood, 677.

Gray & Myers, for respondent.

"The common law right of action for damages accruing from an injury received by a workman in the course of his employment is abolished except as in the act otherwise provided." State ex rel. Davis v. Clauses, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466; Peet v. Mills, 76 Wash. 437, 136 Pac. 685, L. R. A. 1916A 385, Ann. Cas. 1915D, 154; Replogle v. Seattle (Wash.) 147 Pac. 196; Ross v. Erickson Construction Co. 89 Wash. 634, 15 p. 153, L. R. A. 1916F, 319; Stertz v. Industrial Ins. Co. 91 Wash., 588, 158 p. 256, Ann. Cas. 1918B, 354; Zenor v. Spokane, etc. (Wash.) 186 Pac. 848.

, C. J. This is an appeal from a judgment in favor of defendant. A concise statement of the material facts will give a clearer understanding of the issues.

The defendant, when Clifford Olson was injured in the manner hereinafter stated, and of which injuries he died, was operating a grocery store and soft drink establishment at Walhalla, N. D. Among others, he employed at such place of business one Herbert Clements, age 13 years and 3 months, and Clifford Olson, age 16 years 6 months and 12 days, who discharged the usual duties incident to their employment in the store. They were in charge of the store when defendant was not present. In the store there were three money drawers, where they were authorized to get change. In one of the drawers for about 15 years defendant had kept a 32-caliber revolver, which, for a year or more prior to the time of the injury resulting in death, was loaded.

On the 10th day of August, 1920, and while the defendant was temporarily absent from the store, Herbert Clements went to the money drawer in which the loaded gun lay, and opened that drawer for the purpose of cashing a check. After he had opened the drawer he called