Page:North Dakota Reports (vol. 2).pdf/147

This page needs to be proofread.
BENNETT v. NORTHEBN PACIFIC RAILROAD CO.
121

obvious that the use of this time by the servant will not seriously discommode the master or delay the shipment of its freight. And, on the other hand, the master has a deep interest in the safety of the servant; for, no matter how perfect the former's defense to a claim for damage, the making of that defense is always attended with expense. Unadulterated selfishness would prompt the adoption of a regulation, the observance of which would save such expense, while not materially reducing the servant's efficiency or affecting the volume of work he can perform. It is without force to assert that the master would discharge an employe who would take the necessary time to make the required examination. Should he discharge the servant before his term of employment had expired, for no other reason, the law would give the servant redress; and, if no time of employment is prescribed, it is the master's legal right, as it is the legal right of the employe, to terminate the relation at any time, without any excuse at all, or for any reason, however unjustifiable in ethics. We would not, however, be understood as asserting that the master could insist upon a rule when the master's conduct in the discharge of its employes, or in any other manner, indicated a purpose not to accord to the latter the necessary time without which the master's command to the exercise of a higher degree of care could not be obeyed. Its actions must not belie its words. This record discloses no such condition of affairs. Neither the plaintiff nor any other employe of the defendant has been discharged, or threatened with discharge, because he sought in good faith to comply with this regulation, and took the necessary time for that purpose. Nor are we confronted with the difficult question as to the rights of the plaintiff, had some one in superior authority commanded a disregard of the rule; neither was the press of business such that a full observance of its behests was not practicable. There was no exigency. The plaintiff, with the defects in full view-one immediately beneath his gaze, and one before his eyes only a short distance away-moved slowly toward his fate, oblivious of danger, because, as is conceded, he took no precautions to discover an open peril. He seeks to excuse his omission to examine the length of the draw-bar by his statement, upon