Gereg v. Milwaukee Gas Light Co. , 128 Wis. 35 ( 1906 )

Cassoday, O. J.

There is no claim of any want of care on the part of the defendant or its superintendent in selecting the foreman who had charge of the men at the time of the accident, nor in failing to instruct or direct him to conduct the work in a way to save the men, as far as possible, from being struck by passing street cars. There is no claim that the place where the men were at work was in itself inherently dangerous. It is conceded that the work in which the plaintiff was engaged at the time of the accident was being done under the supervision of the foreman. The only negligence-claimed is that the foreman failed to inform the plaintiff that other cars were liable to pass at or about the time in question, or to provide a watchman to warn the plaintiff and other workmen of the approach of such car. The trial court directed a verdict in favor of the defendant, on the ground' that such alleged negligence of the foreman, if any, was the negligence of the plaintiff’s fellow-servant, for which the defendant was not liable.

The important question is whether the plaintiff and the-foreman were fellow-servants at the time in question. As-claimed by counsel for the plaintiff, the answer to the question does not depend upon the rank or grade of the negligent servant, but upon the nature or character of the act in the performance of which the injury was incurred. Dwyer v. Am. Exp. Co. 82 Wis. 301, 52 N. W. 304; Kliegel v. Weisel & V. Mfg. Co. 84 Wis. 148, 53 R. W. 1119; Stutz v. Armour, 84 Wis. 623, 54 N. W. 1000; Wiskie v. Montello G. Co. 111 Wis. 443, 449, 87 N. W. 461, and cases there cited; Okonski v. Pa. & O. F. Co. 114 Wis. 448, 90 N. W. 429. In several of these cases the negligent act complained of was the act of tRe foreman conducting tRe work. TRus, in one of tRe cases cited it was Reid:

“A foreman wRo personally conducts tRe blasting in a quarry is a fellow-servant of tRose who assist Rim in sucR work, and one of tRe latter cannot recover for injuries caused by tRe unexpected explosion, beneatR tRe rock upon wRicR Re was at work, of powder which tRe foreman Rad negligently permitted to remain tkere after tRe partial explosion of a blast.” Wiskie v. Montello G. Co., supra.

In another of the cases cited it was Reid that “the facts that the foreman Rad authority to hire, discharge, and direct the dock force, and was charged with the duty to see that the docks were so< operated as to be safe, and to provide necessary lights, signals, and warnings, di.d not render Rim other than a fellow-servant of plaintiff while performing the specific act mentioned.” Okonski v. Pa. & O. F. Co., supra.

As. indicated, the place where the plaintiff was at work, at the time of the injury, was not of itself inherently dangerous. It was only made dangerous by the approach of the street car, over which the defendant Rad no control. Of course, it has often been held by this and other courts that it is the duty of the master to provide and maintain for his servants a reasonably safe place for the doing of their work, and that such duty is personal to the master and cannot be delegated to another. Bessex v. C. & N. W. R. Co. 45 Wis. 477; Hulehan v. G. B., W. & St. P. R. Co. 58 Wis. 319, 17 N. W. 17; S. C. 68 Wis. 520, 32 N. W. 529; McClarney v. C., M. & St. P. R. Co. 80 Wis. 277, 280, 49 N. W. 963. But that principle has no application to a case where, as here, the place in itself was reasonably safe, but was liable to be rendered unsafe by the sudden approach of a car, which might have been foreseen and therefore avoided, had not the foreman failed to notify the plaintiff that other cars were liable to pass, or to provide a watchman to warn the plaintiff and other workmen of the approach of such car.

As indicated in some of tbe cases cited, the mere fact that the negligent person happened to be such foreman did not prevent him from being the fellow-servant of the men. Numerous additional illustrations might be cited. „ Thus it has been held that a foreman in a lumber yard and an employee therein are fellow-servants. Hoth v. Peters, 55 Wis. 405, 13 N. W. 219. So the foreman in raising and erecting a water tank and the workmen under him are fellow-servants. Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, 21 N. W. 269. So a watchman employed to guard a car-repairer is a fellow-servant of such repairer. Luebke v. C., M. & St. P. R. Co. 63 Wis. 91, 23 N. W. 136. So a brakeman on an approaching freight train was held to be a fellow-servant of workmen engaged in repairing the track, but who failed to give sufficient notice to those in charge of the train. Cooper v. M. & P. du C. R. Co. 23 Wis. 668. See Toner v. C., M. & St. P. R. Co. 69 Wis. 197, 198, 31 N. W. 104, 33 N. W. 433, and cases there cited. We must hold that the plaintiff in this action and the foreman in charge of the men were fellow-servants, and hence that the verdict was properly directed in favor of the defendant.

By the Court. — The judgment of the superior court of Milwaukee county is affirmed.