Page:North Dakota Reports (vol. 1).pdf/367

piles from the car, some of the men rolled them with their hands, and others used cant-hooks in the work. One of the piles which was being removed from the car rolled from the ends of the skids into the space between the pile on the bents nearest to the track and the next pile, and pushed the former pile towards the plaintiff, and upon his leg, breaking the same near the ankle. One of the grounds upon which plaintiff based and seeks to sustain his recovery was the alleged negligence of the foreman of the gang at work in failing to block this pile so as to prevent its being shoved towards the plaintiff. That the pile was not blocked at the end where plaintiff was working appears to be undisputed. There was evidence to show that the foreman was notified of this fact before the accident. While he denies this, yet there was sufficient evidence to warrant a jury in finding the fact against his testimony. We are clear that the jury were authorized, under the evidence, to find that plaintiff was injured by reason of the negligence of the foreman, Withnell, in failing to block the pile. Will the law hold the defendant responsible for this negligence? Against such liability, defendant invokes the fellow-servant rule, and our statute embodying it. To escape the force of this rule, plaintiff contends that the case is brought within the scope of the fellow-servant rule, and that such limitation has the voice of weightier authority, of better reason, and of more numerous precedents in its behalf. This issue of law we are to determine, and our investigation must run along the line of general principles; for the adjudications upon this subject—so multitudinous as almost to warrant the simile, “thick as autumnal leaves that strew the brooks in Vallambrosa”—these adjudications are so discordant, enumerating so many rules, stating so many limitations, applying the law to facts so diverse, that one is reminded of Gibbon’s remark upon the infinite variety of laws and opinions when Justinian entered upon the reform of codification—that they were beyond the power of any capacity to digest. We are compelled to decide whether this superior-servant limitation shall be adopted in this state. The trial court declared it to be the law in his charge to the jury, and refused to charge against the adoption of the doc-