Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. edge of the weight to be raised, the direction in which the force was to be applied in raising the timbers, and all other circumstances which might affect the power to be applied. The foreman was the representative of the company to see that this work was properly done. He is supposed to have the necessary knowledge and skill to do that work well. Supposing the railroad company had intrusted that work to a person having no mechanical experience whatever, and he had placed the post as it was in this case, and it had given way when the weight was put upon it. This court would not have hesitated to declare that the company was negligent in intrusting the work to an incompetent man. How, under the rule of this court, can the company excuse itself if its agent who is competent to do the work intrusts the doing of it to an incompetent person, who fails for want of the knowledge or skill to do it well? If he directed it to be set by an incompetent person, without giving orders how it should be set, and such incompetent person did the work imperfectly, from want of skill and judgment, then even such person, much less the other employees who had no hand in doing the work, would be guilty of no culpable negligence, and if injury happened to him from his unskilful work, the real culpability would rest upon the foreman who directed. him to do a work he was incompetent to perform and without instructing him how to perform it. The case would come within the rule which requires the master, when he set the servant who is unskilled in the business at work in a dangerous place, to inform him of the dangers attending his work and give him the proper instructions how to avoid such. danger. If the foreman gave the person or persons doing the work the proper instructions, and they failed to follow such instructions, and an injury was sustained by any of those employed in such work, by reason of their neglect to follow instructions, they could not recover, because their negligence contributed to their injury; but this would not Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. apply to the other workmen who were not engaged in setting the work. The foreman did not perform his whole duty by directing the work to be done by others, although he gave the proper instructions. It was his further duty to inspect the work while it was being done, to see that it was properly done and in a safe condition to be used for the purposes for which it was intended; and when the machine was put in use to assist in doing their work, the employees of the company, except those only who were guilty of culpable negligence in preparing the machine for use, had the right to suppose that the company had used due care in preparing the same for use. The case of Murphy v. B. & A. R. R. Co. 59 How. Pr. 197, if not in all respects like the case at bar, points out the distinction between the rights of employees who are called upon to use a machine, as against the master, and the rights of those who construct or repair the same for the master. The head-note to the case is as follows: "Employers who construct or repair machines are not liable to their employees who are engaged in the construction or repair of a machine upon which they are ordered to make certain repairs, provided some other workman in the same shop has so carelessly done his prior part of the work of repair as to leave the machine unfit to have any additional work done on it, and in consequence thereof the employee who undertakes to do the last work is injured." WESTBROOK, J., in his opinion in the case, p. 200, says: "The general rule undoubtedly is that an employer who furnishes the machine for his servant to work with is bound to provide one safe for that purpose; but when a machine which is safe has been furnished, the men who operate it take upon themselves the risk of their fellow-workmen's carelessness. When, however, an accident occurs, not in the operation but in the construction or repair of a machine for operation, in the doing of which the Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. party, a servant, is injured, such accident being caused by the negligence of another servant, who had done a previous and different part of such construction or repair, is the master then liable in damages for the injury?" And this last question was answered in the negative by the court. The case at bar would be like that just cited, had the plaintiff's employment made it a part of his duty to assist in setting up the hoisting-machine, and while employed in setting it up and preparing it for use he had received an injury from the carelessness of the foreman or some other persons who were assisting him in that work. The evidence in this case fails to show that the plaintiff was employed to assist in setting up the hoisting-machine, and shows very clearly that he was not called upon to assist in any manner in that work. He does not come within the letter or spirit of the rule laid down in the case cited. In principle it can make no difference as to the liability of the master to his servant for injuries caused by his neglect in furnishing safe and suitable machinery with which to do his work, or with which he may come in contact in doing such work, whether the machinery be made and put in shape for doing the work in the machine shops of the master or upon the ground where it is to be used by the servants. In either case, if an injury happens to one whose duty it is and who is in fact aiding in the construction of the machine, from the neglect or carelessness of some other servant or employee who is employed with him in the same work, and while they are engaged in such work of construction, the master is not liable; but where some other servant or employee of the master is called upon to use the machine after its construction is completed, and he is injured by the negligence of those who constructed the same, in not constructing it in a safe and suitable manner, then it seems to me that the general rule applies and the master is liable for such injury. And I also think that one employed in helping to construct the machine, and who is Peschel vs. The Chicago, Milwaukee & St. Paul R'y Co. afterwards called upon to use it, may hold the master liable for an injury resulting from any neglect or carelessness in its construction of which he was himself not guilty, and of which he had no knowledge. The ground of the master's liability in the latter case, as well as in all other cases, rests upon the established rule that it is his duty to inspect and test the machine before it is put into use; and if he puts it into use without such inspection and test, he is liable for an injury resulting from any defects which might have been discovered thereby; and the person engaged in the construction of such machinery, who is not in fault himself and has no knowledge of any negligence of his co-employees in such work, has the same right as any other employee of the master, to demand of him that he shall do his duty in regard to making such inspection and tests before he shall be called upon to use the machine in doing other work for the master. The case of Manning v. Hogan, 78 N. Y. 615, was the case of a defective scaffold. The building was a large public building, and the evidence showed that the putting up of scaffolds for such building was a work which required skilled labor or experts in that business, and it was held that the master was liable to one of his employees for an injury received from a defect in the scaffold, notwithstanding the master had furnished suitable materials for the construction thereof. The decision does not turn upon the point that the master himself was present directing the erection of the scaffold, as the facts stated show he was not; but upon the facts that the scaffold, under the evidence in that case, was a work that required skilled labor, the same as in making a machine or tool for the use of the employee, and that the persons who built the scaffold were not skilled in that business, and therefore the master was liable for the negligence. of the co-employee engaged in the construction of the same. Upon the merits of the case I think the plaintiff was entitled to recover, and the judgment should not be reversed. Hoffman vs. Van Diemen and husband. Whether there were errors in the admission of evidence or in the rulings of the court, which would entitle the appellant to a reversal, I have not considered, as this court in its decision have not considered any other question than the one I have above discussed. By the Court. The judgment of the circuit court is re versed, and a new trial ordered. A motion for a rehearing was denied March 3, 1885. HOFFMAN VS. VAN DIEMEN and husband. November 10, 1884- March 3, 1885. Foreclosure of mortgage: Tender: Evidence. Upon the evidence in this case it is held, notwithstanding a finding of the trial court to the contrary, that there was a sufficient tender of the amount due on a note and mortgage, kept good by a deposit of the money with the clerk of the court, and that plaintiff was not entitled to a judgment of foreclosure of such mortgage. But the evidence is held sufficient to support a finding that a second note and mortgage had not been paid and that satisfaction of the mortgage had been entered by mistake. APPEAL from the County Court of Milwaukee County. The case is sufficiently stated in the opinion. The defendants appealed from a judgment in favor of the plaintiff, for the foreclosure of both mortgages in suit. For the appellants there was a brief by Small & Ladue, and oral argument by Mr. Small. E. P. Smith, for the respondent. The following opinion was filed November 25, 1884: ORTON, J. The action was for the foreclosure of two mortgages: one for $1,000, dated June 8, 1877, and one for |