Page:North Dakota Reports (vol. 48).pdf/815

 can no more be tolerated by courts of justice than a judgment without evidence.” Bowen v. Ill. C. R. R. Co. 136 Fed. 306, 69 C. C. A. 448, 70 L. R. A. 815, citing also Central Coal & Coke Co. v. Hartman, 111 Fed. Repelent 98, 49 C. C. A. 244.

Another statement of the rule is as follows: “Where a servant steps aside from his masters’ business and does an act not connected with the business, which is hurtful to another, manifestly the master is not liable for such act, for the reason that having left his employers business, the relation of master and servant did not exist as to the wrongful act; but if the servant continues about the business of the employer, adopts methods which he deems necessary, expedient or convenient, and the methods adopted prove hurtful to others, the master is liable.” Pittsburg, Cincinnati & St. Louis R. R. Co. v. Kirk, 102 Ind. 399, 52:Am. Rep. 675, Citing 14 How. 468.

Bronson, J. This is an action to recover damages for negligence. The plaintiffs have appealed from a judgment entered upon a verdict directed for the defendants. The insurance company paid its obligation resulting from the fire and is one of the plaintiffs, through assignment and subrogation. The oil company operated at Parshall, N. D., an oil station for the sale of gasoline and kerosene. There is evidence in the record to the following effect: On October 15, 1918, one Pierce was manager and in charge of the oil station. Pursuant to his testimony, on that day, in the evening, one Pike, a conductor of the Soo Railway, came to this oil station. Pierce had just filled a barrel of gasoline for a farmer and was making out an oil check in the office. The conductor came in and requested some high-test gas for his lantern. Pierce took the can which the conductor had with him and proceeded into the warehouse to a barrel some 4o feet distant. The office in the warehouse was lighted by electric lights of 100 candle power. The conductor followed Pierce. Pierce emptied some gasoline out of the barrel into a filling can. Then, as he was putting a funnel in the can brought, the conductor stepped around, let his lantern down, and the explosion and fire followed. Then for the first time, Pierce noticed that the conductor had a lighted lantern. Pierce gave the lantern a kick and it went outside over the warehouse platform. The warehouse