44-1401. CASES WHERE EMPLOYER DEEMED LIABLE — ASSUMPTION OF RISK BY EMPLOYEE. Every employer of labor in or about a railroad, street railway, factory, workshop, warehouse, mine, quarry, engineering work, and any building which is being constructed, repaired, altered, or improved, by the use and means of a scaffold, temporary staging, or ladders or is being demolished, or on which machinery driven by steam, water or other mechanical power is being used for the purpose of construction, repair or demolition thereof, shall be liable to his employee or servant for a personal injury received by such servant or employee in the service or business of the master or employer within this state when such employee or servant was at the time of the injury in the exercise of due care and diligence in the following cases:

1. When the injury was caused by reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition.

2. When the injury was caused by reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority and consent of such employer.

3. When such injury was caused by reason of the act or omission of any person in the service or employment of the master or employer, done or made in obedience to the rules and regulations or by-laws of the master or employer, or in obedience to particular instructions given by any person delegated with the authority of the master or employer so to instruct.

4. When such injury was caused by the negligence of any person in the service or employment of the master or employer who has charge of any signal or telegraph office directing the movement of any locomotive engine, train or car upon a railroad, or any part thereof, at the time such person was injured.

5. That [in] any action brought against any employer or master under or by virtue of any of the provisions of this chapter to recover damages for injuries to or death of any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where a violation by such employer or master of any statute enacted for the safety of employees contributed to the injury or death of such employee.

6. An employee, by entering upon or continuing in the service of the employer, shall be presumed to have assented to the necessary risks of the occupation or employment, and no others. The necessary risks of the occupation or employment shall, in all cases arising after this chapter takes effect, be considered as including those risks, and those only, inherent in the nature of the business, which remain after the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employees.

History:

[(44-1401) 1909, p. 34, 1st par. of sec. 1; I.C.A., sec. 43-2001.]