(dissenting). The complaint in this case alleges that the plaintiff was engaged by the defendant to over-haul and repair *6051lic engine of a so-called speeder. Presumptively the plaintiff was qualified to do such work; and, as stated in the majority opinion, it is virtually conceded on the part of the plaintiff that he was an independent contractor, and that the relation of master and servant did not exist between plaintiff and defendant. It is alleged that “upon examining and overhauling said engine . . . plaintiff determined and found it would be advisable to try out and test the said engine by operating-said speeder upon the railway tracks of the defendant company;” and that thereupon the plaintiff took the speeder to the station of the defendant at Bismarck, and asked for and received authority from the defendant to test the “engine by operating said speeder upon the tracks of the defendant company near the city of Bismarck.” The basis of the alleged charge of negligence arises at this point.
It is alleged: “That aforesaid thrce-wheelecl gasoline speeder was a dangerous and treacherous machine to operate and control when running upon a railroad track in that said machine, on account of the nature of its construction, did not hold to the track, but, in fact, was extremely dangerous and treacherous in that its wheels would, without warning, jump off from the track rails, all of which said facts were-known to the defendants and wholly unknown to this plaintiff, and of which facts the defendant negligently, carelessly and wantonly failed and neglected to impart to or give notice of to the plaintiff when authority to operate said speeder upon the tracks of the defendant was given by it to the plaintiff, or at any other time.”
It is further alleged that the speeder, while being operated by the plaintiff in the usual manner, “did jump off the rails;” that the plaintiff sustained injuries as a result thereof; and that all such “injuries and bruises were caused, without fault on the part of the plaintiff or his employee, by the failure and negligence of the defendant, as aforesaid, in negligently and carelessly failing to impart to or give notice, to the plaintiff, of the dangerous and treacherous nature of said speeder when operated upon a railroad track, as aforesaid.”
There is no allegation in the complaint that the speeder was in any manner different from others of its class. On the contrary, from the facts alleged in the complaint, it must be assumed that it had all the virtues and all the faults of speeders in general. Or, as it is said in the majority opinion: “There is no allegation in the complaint that *606there was any specific defect in the machine; it is not claimed that any part of it was worn, broken, or in any respect defective; the contention is simply that the entire machine,' though all its parts were sound and in functioning condition, was, nevertheless, a dangerous instrumentality when operated, upon railroad tracks.”
The plaintiff had undertaken to repair the engine and he asked permission to operate the speeder on the tracks for the purpose of “trying out and testing” the engine. There is no contention that -the plaintiff at the time he asked such permission in any manner intimated that he was not familiar with the operation of speeders or their general characteristics while being operated on a railroad track.
In my opinion the averments in the complaint do not show that the defendant breached any legal duty which it owed to the plaintiff. In other words, I am of the opinion that the complaint does not state facts sufficient to constitute a cause of action.