Kleeman v. Chicago & Northwestern Railway Co.

The following opinion was filed February 10, 1925:

Vinje, C. J.

The appeal raises two questions: (1) May a jury reasonably come to the conclusion that it was a negligent act to throw the stone under the circumstances? and (2) Was the act of throwing the stone within the-scope of the foreman’s employment?

It is urged by the appellant that the act of throwing stones is so usual, customary, and, under the circumstances exist*484ing, so instinctive that no negligence can be predicated upon it. While there is ordinarily much force in this contention we do not feel that it is of sufficient weight to…