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Northern Pacific Company v. Mares, to have been received by the plaintiff while in the employ of the defendant, by reason of its alleged negligence The complaint alleges that on October 31, 1881, the plaintiff was in the employ of the defendant as a brakeman on duty as such in the yard at the city of Fargo, used for the purpose of switching cars to make up trains, in which service a switch-engine was used; that at the time of the injury the engineer of the switch-engine was one Bassett, who, it is alleged, was a man of hasty and excitable disposition, and ungoverned, violent, and hasty temper, 'and was and had for a long time been, while in the employ of this defendant as engineer, accustomed to become unduly and dangerously excited and angry, and while under the influence of anger or excitement, and while in the performance of his duty as engineer, was and had been accustomed to act the conduct himself as engineer in a most reckless manner, causing great danger and peril to his fellow-servants, and especially to the brakemen on the train or cars attached to or moved by the engine on which he was engineer;' and that in consequence thereof 'the said engineer was, at the time of the injury hereinafter referred to, and for a long time prior thereto had been, negligent, unskillful, unfit, and incompetent to act as engineer of said switch-engine, or of any engine or locomotive; of which facts the defendant had notice and knowledge, and by the use of ordinary diligence defendant would have discovered and learned that he was a negligent and an unfit, unskillful, and unsafe engineer And this plaintiff had not notice or knowledge prior to the injury to him hereinafter referred to that the said engineer was for any reason or on any account and unfit or unsafe person to act as engineer' It is further alleged that at the time of the injury the plaintiff 'was required, in the performance of his duties as switch brakeman, to set or fasten, or to loosen, the brakes of the cars which were being switched or moved in the said yard, and he was at the time and place aforesaid required to perform the said duty on the cars of the defendant, which were being switched and moved by the engine in which the said Bassett was engineer, and in the moving of cars it was his duty as brakeman to give signals to the said engineer, and of the said engineer to obey such signals; that, at the time and place aforesaid, and while this plaintiff, in the performance of his duties as brakeman as aforesaid, was upon the top of the freight car (part of a train) being removed in the said yard by the engine in which the said Bassett was engineer, and while the said Bassett had control of and was managing said engine, this plaintiff, as it was his duty to do, gave the said engineer a signal to move and 'back' the cars attached to the said switch-engine the length of a certain number of cars indicated by the signal And the plaintiff, as he was in duty required to be, was standing on the top of the rear car so being moved backward, and before said cars had been moved backward the distance which they were intended to be removed, and the distance which the signal, given by this plaintiff, required them to be removed, the said engineer unskillfully, negligently, recklessly, and suddenly, and contrary to his duty, stopped and reversed the said switch-engine, and the cars attached thereto, and thereby threw the plaintiff off the rear car where he was standing, and where it was his duty to stand, to the ground, and thereupon the said engineer suddenly, negligently, recklessly, and violently and unskillfully, then and there, and before the plaintiff had time to or could move out of the reach of the cars or off the track, moved and pushed the said engine and cars back ward upon said track and onto and over the plaintiff, and thereby greatly injured the plaintiff, and crushed and broke both of his legs, so that it then and there became and was necessary to amputate them, and they were then and there, on account of said injuries, amputated,' etc .
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