Page:North Dakota Reports (vol. 48).pdf/807

 Clifford Olson was not fired by the defendant, but by young Clements, a third party; but he could not have fired the fatal shot if the plaintiff had not carelessly and negligently permitted the loaded revolver to be where it was, and where young Clements, who was known to defendant to be careless and reckless, had access to it. The carelessness and negligence of the defendant in this respect was in reality the proximate cause of the injury.

The facts above stated are wholly undisputed, and it seems that the defendant should have apprehended that it was dangerous to the public to keep a loaded revolver where this was, knowing that it was a dangerous instrumentality, which, even in the hands of one experienced in its use, must be handled with great care in order to have due regard to the safety of others, and knowing further that instinctively the ordinary youth is attracted to it.

We are of the opinion that there is sufficient evidence of defendant’s

“negligence in the respect hereinbefore stated as to require that question to be submitted to a jury, and that it was for it to determine under all the evidence whether the defendant was negligent, or if he should have apprehended the consequences which did result by his having placed the loaded revolver where he did place it, which, in fact, was in a place where the two youths would be expected at times to resort in the dis- charge of their duties—that is, in the cash drawer.

At the commencement of the trial defendant objected to the introduction of any evidence on the ground that sufficient facts were not stated in the complaint to constitute a cause of action, for the reason that § 11 of chap. 162 of the Session Laws of 1919 is exclusive, and that it conferred no right on the father, but only on the personal. representatives of the deceased, to bring an action. The court overruled the objection, and permitted the trial to proceed, but required plaintiff to elect on which cause of action he based his right to recover. Plaintiff elected to proceed under the first cause of action.

The trial court, at the conclusion of plaintiff’s case, found, as a matter of law, that there was insufficient evidence to establish negligence on the part of the defendant, and directed a verdict in his favor. This, we think, was reversible error.

Section 11, in so far as necessary to be here set out at length, provides :

“Employers subject to this act, who shall fail to comply with the provisions of § 6 and § 7 hereof, shall not be entitled to the bene-