Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. Wis. 520; Wis. 478; Bessex v. To adopt this rule, it appears to me, is in conflict with the spirit if not with the letter of the doctrine well established in this court, as well as in the courts of other states, and of the supreme court of the United States, viz.: "That the master owes an absolute duty to his employees to furnish them with reasonably suitable and safe machinery and other appliances with which they are required to do their work, or with which they may come in contact while doing their work; and this duty being one which the company is bound to perform, it cannot be excused from its performance by intrusting it to an employee or officer who may neglect to perform such duty." This doctrine has been repeatedly announced in this court. Brabbits v. C. & N. W. R'y Co. 38 Wis. 289; Smith v. C., M. & St. P. R'y Co. 42 Wedgwood v. C. & N. W. R'y Co. 41 C. & N. W. R'y Co. 45 Wis. 477, 481; Wis. 1; Heine v. C. & N. W. R'y Co. id. 525, 531. The same doctrine is announced in the following cases: Bridges v. St. L., I. M. & S. R. R. Co. 6 Mo. App. 389; Porter v. H. & St. J. R. R. Co. 60 Mo. 160; Long v. Pacific R. R. Co. 65 Mo. 225; Baker v. W. & A. R. R. Co. 68 Ga. 699; L. S. & M. S. R'y Co. v. Fitzpatrick, 31 Ohio St. 479; Guthrie v. L. & N. R. R. Co. 11 Lea (Tenn.), 372; Fuller v. Jewett, 80 N. Y. 46; Drymala v. Thompson, 26 Minn. 40; Flike v. B. & A. R. R. Co. 53 N. Y. 519; King v. N. Y. C. & H. R. R. R. Co. 72 N. Y. 607; Cone v. D. L. & W. R. R. Co. 81 N. Y. 207; C. & N. W. R'y Co. v. Jackson, 55 Ill. 492; T. W. & W. R'y Co. v. Ingraham, 77 Ill. 309; Kain v. Smith, 80 N. Y. 458; G., H. & S. A. R. R. Co. v. Delahunty, 53 Tex. 206; Gates v. S. M. R. R. Co. 2 Am. & Eng. R'y Cas. 237; Herbert v. N. P. R. Co. 8 Am. & Eng. R'y Cas. 85; L. & N. R. R. Co. v. Orr, id. 94; Hough v. Railway Co. 100 U. S. 213; King v. O. & M. R'y Co. 11 Biss. 362; O'Neil v. St. L., I. M. & S. R'y Co. 3 McCrary, 432; Paulmier v. Erie R. R. Co. 34 N. J. Law, 151. Many other VOL. 62-23 Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. cases might be cited to the same point; and few, if any, well-considered cases hold a contrary doctrine. This court has also held that it is the further duty of the master to keep the machinery, apparatus, and other appliances to be used by his employees in a reasonably safe and proper condition for use, and that the duty to do so cannot be delegated to any agent, employee, or officer, so as to relieve himself of such duty. Schultz v. C., M. & St. P. R'y Co. 48 Wis. 375, 381; Wedgwood v. C. & N. W. R'y Co. 41 Wis. 478; Brabbits v. C. & N. W. R'y Co. 38 Wis. 289. In this respect, the rule adopted by this court differs from that adopted in England and in Massachusetts and some other states, but is in accord with the decisions of the court of appeals of New York, most of the other states, and of the supreme court of the United States. See cases above cited, and Davis v. C. V. R. R. Co. 55 Vt. 84, 93; Wharton on Agency, § 232; Pierce on Railroads, 370; Crispin v. Babbitt, 81 N. Y. 516; Dana v. N. Y. C. & H. R. R. R. Co. 92 N. Y. 639. The cases cited by the learned counsel for the appellant to sustain his proposition that the master is not liable for the negligence of one of his employees or servants, whose duty it is to assist in adjusting and putting in working order a machine or other appliance which is to be used in doing his work, are all either English or Massachusetts cases, or of courts which have adopted the rule laid down by those courts, and are all in conflict with the decisions of this court, and with the decisions of the courts which sustain the rule laid down by this court, viz.: Johnson v. Boston Tow-boat Co. 135 Mass. 209; Collins v. St. P. & S. C. R. R. Co. 30 Minn. 31; McAndrews v. Burns, 39 N. J. Law, 117; Wilson v. Merry, L. R. 1 H. L. Sc. App. Cas. 329; Feltham v. England, L. R. 2 Q. B. 33; Wigmore v. Jay, 5 Exch. Rep. 354; Tarrant v. Webb, 86 Eng. C. L. 796; Searle v. Lindsay, 103 Eng. C. L. 429; Wonder v. B. & O. R. R. Co. 32 Md. 414. These are the only cases cited by the Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. learned counsel for the appellant where the negligence of a co-employee in the construction or keeping in repair of a machine or appliance, which resulted in an injury to some other employee, came in controversy, and in which it was held that the master was not liable to the party injured for such negligence. The distinction between the cases cited above by the learned counsel for the appellant and the rule established by this court is to me quite apparent. The English cases, the Massachusetts case, and the cases from New Jersey and Maryland all go upon the ground, if carried out logically, that the master is not bound absolutely to furnish his employees with reasonably safe and perfect machinery or appliances with which to do their work, but that his duty ends when he has provided suitable material out of which the machinery or appliances may be constructed, and then employs competent persons to construct and keep them in repair, and that negligence in the construction and keeping in repair in such case is the negligence of a co-employee, for which the master is not liable; whereas this court and those which adopt a like rule hold that the duty of the master does not cease until the machinery or appliances to be used by his employee are put in a safe condition for use, and then constantly kept in such safe condition, and that the employee whose duty it is to see that such machines and appliances are properly constructed and put in safe condition for use, and to keep them in such condition, in this respect represents the master, and his negligence in the performance of his duty is the neglect of the master, for which the master is liable, although such employee may in other respects be the co-employee of the person injured by such negligence. The line of distinction, in my opinion, is this: The master is liable for neglect in furnishing reasonably safe machinery and appliances for the use of his employees, and to keep them in such safe condition; but he is not liable for the neg Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. ligent use of such machinery or appliances by his employees, from which negligent use an injury happens to a co-employee. Shanny v. Androscoggin Mills, 66 Me. 420, 426. "To provide machinery and keep it in repair, and to use it for the purposes for which it was intended, are very distinct matters. They are not employments in the same common business tending to the same common result. The one can properly be said to begin only where the other ends." The case of Morgan v. Vale of N. R'y Co. 5 Best & S. 570, and Bartonshill Coal Co. v. Reid, 3 Macq. 266, are instances of the negligent use of machinery or appliances resulting in an injury to an employee; and it was rightly held, within the rule established by this court, that the injured party could not recover for such negligence of a co-employee. The distinction between the rule established by the decisions of this court and that established by the English and other cases quoted by the counsel for the appellant is pointed out by the learned judge who delivered the opinion in the case of Davis v. Cent. Vt. R. R. Co. 55 Vt. 91, 92. After quoting from the opinion of the Lord Chancellor in the case of Wilson v. Merry, supra, he says: "This view places the liability of the master upon the duty he owes to the workmen arising from their relations to each other. It implies that if the master personally attempts to discharge that part of the work which the relation devolves upon him, and his negligence therein causes injury to the workman, the master is liable therefor. The question is naturally suggested, why should he not also be liable for the negligence of the other servant whom he has appointed to discharge the same duty in his stead, although he has exercised due care to select a person competent and skilful? Is such an agent or servant, while performing the duty cast by the relation of the master, a fellow-workman with the master's servant in the employment, in such a sense that the latter cannot and ought not to recover of the master for injuries sustained through the negligence of the former? Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. If so, the master who performs his part of the duty, as this defendant and all corporations must, by agents and servants, secures an immunity from liability which the master who personally enters the service to manage and direct the performance of the work does not enjoy." The same argument is perhaps more clearly and forcibly stated by this court in the case of Brabbits v. C. & N. W. Ry Co. 38 Wis. 298. The duty of the master to provide and keep in repair the machinery and appliances which his servants are called upon to use in doing his work cannot be successfully controverted in this court, nor do the learned counsel for the appellants, in their oral argument, ask this court to review or overrule its well-established rule in that respect, though most of the cases cited in their printed brief hold a different rule; but they seek to distinguish this case from the almost numberless cases sustaining the rule of this court by urging that in this case the persons who were employed to assist in building the tank and windmill were also employed to assist in constructing, or at least in setting up and putting in position for work, the hoisting apparatus or machinery which they were to use in raising the tower. To my mind this cannot alter the liability of the master, except, perhaps, as to such of the servants as were guilty of negligence in assisting in putting the hoisting-machine together or in place. It is well known that the setting up or putting together the parts of a machine so as to constitute a working machine is a work which requires almost if not quite as much skill, judgment, and knowledge of mechanical forces as the making of the different parts; and the ordinary laborer or workman is not expected to have the knowledge necessary for such work. It must be admitted that the setting of the post which was to sustain all the force necessary to raise the heavy timbers of the tower, by means of blocks, tackle, and crab, was a matter which required expert knowledge. It required a knowl |