Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. the knowledge of the foreman whose duty it was to repair it. The case falls within the rule that the foreman was charged with the master's duty to the servant, and was bound to use due care to keep the pile-driver in order, and the master was responsible for the foreman's negligence in not doing so. Kansas Pac. R'y Co. v. Little, 19 Kan. 267; Kain v. Smith, 89 N. Y. 376, are practically ruled by the same principle of law. But it would be unprofitable to multiply authorities upon this point. Therefore, in the light of all the authorities to which our attention was called, we fail to perceive any good ground for holding the defendant responsible for the negligence of Brooks in fixing and adjusting the machinery and appliances. for raising the bents, including the setting of the anchorpost. From the necessity of the case these matters had to be intrusted to Brooks and the men under him. It was left to them to provide the object to which the anchor-line should be attached whether a tree, or post, or something else and to adjust the machinery generally. A post was selected which was sufficient to resist the force to be ap plied in raising the bents if it had been properly set in the ground. But if there was any negligence in setting it, or in fastening the anchor-rope to it, or in managing and using the hoisting apparatus, such acts of negligence stand upon the same ground. If the defendant is liable for the negligence of Brooks in doing any one of these things, it would be liable for his carelessness in doing any one of the others. But it is claimed that, as to the plaintiff, Brooks was a superior servant, or so represented the company in doing the work as to make it liable for his negligent acts. There are surely cases which hold that a servant may recover in an action against the master for an injury occasioned by the negligence of another servant when the latter is engaged in a different or distinct branch or department of service. But it seems to us that Brooks and the men under him must be Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. regarded as fellow-servants engaged in the same common work or employment. This is what all the evidence in the case clearly shows. The facts bring the case fully within the rule laid down on this subject in Cooper v. M. & P. du C. R'y Co. 23 Wis. 668; Howland v. M., L. S. & W. R'y Co. 54 Wis. 226; Hoth v. Peters, 55 Wis. 405; Heine v. C. & N. W. R'y Co. 58 Wis. 525; Pease v. C. & N. W. R'y Co. 61 Wis. 163. See, also, Wood on Mast. & Serv. § 435, and cases cited in notes. It is true, Brooks had charge of this work of erecting the tank and windmill. In certain cases it appears he was authorized to discharge a man under him who did not work to suit him and hire another in his place. But he had no general authority to hire and disdischarge the men under him. This authority was given to the master carpenter, Bennett, who had charge and control of the different gangs of men, and gave directions to the foreman as to what they were to do. We think Brooks and his entire gang were fellow-servants, within the strict meaning of the rule of law. They were certainly all subject to the control and direction of the same master, and were engaged to do the same work. In the Howland Case, a shoveler on a train which was employed in removing snow from the track and the conductor of such train were held to be fellow-servants engaged in the same service. So, in the Heine Case, the conductor and men engaged in "surfacing track" were regarded as fellow-servants, within the rule which exempts the master from liability for an injury to one of the men occasioned through negligence of the conductor. The same rule was applied in the Pease Case, where a brakeman was injured by the careless act of the conductor of a passenger train. Mr. Wood says it is subjection to the same general control, coupled with an engagement in the same common pursuit, that affords the true test of determining whether persons are fellow-servants. Wood on Mast. & Serv. § 435. Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. It is true, the plaintiff was a mason, but it was his duty to assist Brooks, the foreman, and the other men in erecting the tank and windmill. The accomplishment of that work required that masons, carpenters, and section-men should be employed and co-operate. The work could not be performed without the employment of all these men, who had to assist in the prosecution of the business, though they were of different trades. Therefore, our conclusion from the testimony is that the plaintiff must be regarded as a co-servant of Brooks and of each of the men engaged in that work. He having been injured through the negligence of Brooks, upon a well-settled principle the defendant is exempt from responsibility for it. For it is the common case where the servant is deemed to assume the risks incident to the employment when he entered the service, so far as the master is concerned. Without specially noticing the other errors, we think the motion for a new trial should have been granted. TAYLOR, J. The plaintiff was injured while in the employ of the railroad company, as a mason, assisting in the construction of a water-tank and windmill tower on the line of the company's road. He was employed to do the masonwork on the foundations of the water-tank and tower, and other work about such structures in his line of business, and generally to do such work as he might be called upon to do by the foreman in charge of the work. At the time he was injured he was, by the request and direction of the foreman in charge of the construction of said tank and tower, assisting in raising the frame-work of the tower. In order to raise this frame-work an apparatus was used, consisting of blocks and tackle, and a crab or windlass. In order to hold the main block in place, a rope attached to it was passed over the top of the tank, which had been put in place, and was fastened to a post set in the ground, some distance be Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. yond the tank, by the direction of the foreman. The tackle was attached to a part of the frame-work to be raised, and the power for raising the same was produced by working a crab or windlass to which the fall was attached. In starting the frame-work, it is alleged by the plaintiff that the power applied at the windlass was insufficient for the purpose, and he was called by the foreman from his employment as a mason to help in raising the frame; that, for the purpose of assisting, he placed his shoulder under the frame-work to lift to advantage, and that while he was so lifting, and after the frame had been raised a few feet from the ground, the post placed in the ground beyond the tank, to which the rope was attached which held the main block in position, was pulled out of the ground, and the frame fell upon him and caused the injury for which he claims damages. The evidence very clearly establishes the fact that the post was not set in the ground a sufficient depth to sustain the strain which was placed upon it in attempting to raise the frame. The evidence also shows that the foreman directed it to be set in the ground four feet; that it was, in fact, set in but three feet. The foreman gave proper orders for setting the same, but did not see that his order was properly executed. The question which is decisive of the merits of this action is this: Is the defendant railroad company liable to the plaintiff for the negligence of the foreman, or other person, who set the post which gave way and caused the injury? On the part of the learned counsel who represent the company it is insisted that the company is not responsible for such neglect, and that the case comes within the well-established rule that the master is not responsible for an injury caused by the negligence of a co-employee, and that the foreman and the plaintiff were co-employees, within this rule. With the position of the learned counsel that the foreman and plaintiff are co-employees I do not disagree; but I disagree with them that the negligence of this co Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. employee does not render the company liable under the facts of this case. In my view of the case, it is within the rule which holds the master liable for the neglect of its servants in not providing suitable and safe appliances, apparatus, machinery, or tools for doing the work, and which the other servants of the company are called upon to use in doing such work. The learned counsel for the company do not deny but that the agency used in attempting to hoist the frame of the tower was a machine, within the meaning of the law, but they claim that so far as the ropes, blocks, and windlass which, when put in position, constituted the hoistingmachine are concerned, the evidence shows that they were all safe and sufficient, and that the defect in the apparatus or machine, when ready for use, consisted in the negligent manner in which it was adjusted and put together for use; and for such negligence it is insisted the company is not liable. If I understand the argument of the learned counsel it is this: that when a set of men are employed to do a certain work, such as the erection of a building, or a water-tank and windmill, as in the case at bar, and in the performance of such work it is necessary to use machinery or other appliances of any kind, and when the parties so employed understand that it is a part of their work to put together such machinery or other appliances on the ground where the work is to be done for use by them, then the master has performed his full duty when he has delivered to them such machinery in a separated and detached condition, such detached parts being in a safe condition and, when properly put together and adjusted, safe and suitable for the performance of the work to be done; and that any negligence in putting such machinery together and adjusting it on the ground for the performance of its work is not to be attributed to the master, but is the negligence of a co-employee, for which the master is not liable. |