Page:North Dakota Reports (vol. 48).pdf/810

 been for years. Assuredly the inference of fact might be drawn that it was there for purposes of the employer's business. The employer had warned the deceased son about this revolver. He gave no warning to the other boy. On the day when plaintiff’s son was killed, then, for the first time, the other boy knew of the presence of this revolver in such cash drawer. It appears in the evidence that the employer knew and stated that this other boy was a little careless and reckless. In view of the relation of master and servant existing between the storekeeper and the boys, and the duties thereby imposed upon such master, may it be said, as a matter of law, upon this record that the master was free from negligence in the performance of his duties? I am of the opinion that it was for the jury to find, as a-matter of fact, whether the master, in the performance of his legal duties, exercised reasonable care, in view of the circumstances and the youth of the boys, in permitting such revolver to be left in such cash drawer, accessible to such boys, without warning or instruction to each of the boys, knowing the careless and reckless characteristics of the younger boy. See 40 Cyc. 873; Ewing v Lanark Fuel Co., 65 W. Va. 726, 65 S. E. 200, 29 L. R. A. (N. S.) 487; Southern Pacific Co. v. Hetzer, 135 Fed. 272, 68 C. C. A. 26, 1 L. k. A. (N. S.) 288; 18 R. C. L. 565—572. The judgment should be reversed, and a new trial granted.

Christianson, J. (concurring specially). As indicated in the opinions prepared by the Chief Justice and Mr. Justice Bronson, one of the two controlling questions presented on this appeal is whether the Workmen’s Compensation Act bars the plaintiff from maintaining an action for the death of his son. Both opinions make reference to § 11 of the Workmen’s Compensation Act. That section reads as follows:

“Employers subject to this act, who shall fail to comply with the provisions of §§ 6 and 7 hereof, shall not be entitled to the benefits of this act during the period of such noncompliance, but shall be liable to their employees for damages suffered by reason of injuries sustained in the course of employment, and also to the personal representatives of such employees where death results from such injuries, and in such action the defendant shall not avail himself or itself of the following common-law defenses:

“The defense of the fellow-servant rule, the defense of the assumption of risk or the defense of contributory negligence.