Stutz v. Armour

PiNNey, J. At the time the plaintiff received the injury of which he complains, and which he imputes to the negligence and improper direction of the foreman, they were both engaged in adjusting the three planks resting on the brackets of the scaffolding, and the foreman was doing, in connection with the plaintiff, the work of a common laborer. The foreman was not, within the rule established in this state, a vice-principal, but was a mere fellow-servant with the plaintiff of a common master in doing the work in question, and the plaintiff in thus working with him assumed the hazard of the alleged negligence of Meinski. The case of Howland v. M., L. S. & W. R. Co. 54 Wis. 226, in which the cases in this state are cited, is decisive against the plaintiff’s claim to recover. The entire subject was fully considered in the recent case of Dwyer v. Am. Exp. Os. 82 Wis. 307, and in this case, as in that, there is no allegation that Meinski was an incompetent person to perform the duties devolved on him by his employment. If he was an ordinary hired servant of the defendants there can be no pretense that the plaintiff would be entitled to recover. Whether Meinski is to be considered as a vice-principal of the defendants or a co-employee and fellow-servant of the plaintiff depends, not upon his rank or grade, but upon the work then being performed by him. The act of Meinski in question was not one that the law implied a contract duty upon the part of the master to perform, and Mein-ski’s negligence or improper performance of it cannot, therefore, be imputed to the master. The direction was one appropriate for one fellow-servant in a common employment to give another; and, both at the time being engaged in the performance of the same act or piece of work, it cannot be maintained that they were not fellow-servants within the meaning of the rule, each assuming the risk and hazard of the negligence of the other as incident to their common employment. The case of Dwyer v. Am. Exp. Co. [627] 82 Wis. 307, is conclusive, and sustains tbe ruling of tbe circuit court. To the same effect is Kliegel v. Weisel & V. Mfg. Co., ante, p. 148. By the Court.— The judgment of tbe circuit court is af-' firmed.