Van den Heuvel v. National Furnace Co.

WiNslow, J. It is claimed by the plaintiff that this is a case where the evidence tends to show that the master has failed to furnish to his employees a safe appliance. Defendant claims that the selection of the plank was a detail of the employees’ work, and that the selection of a defective plank, if negligence at all, is that of a co-employee and not of the master. The rule requiring the master to furnish 'safe appliances and machinery has been frequently recognized by this court. Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, cases collated on page 346. The same case recognizes and enforces the principle that where it is the duty of employees to erect a staging or structure, the master retaining no supervision, but providing suitable materials and employing" careful workmen, the master is not liable for injuries to a workman caused by a fall of the staging. In the present case it is clear that there were plenty of planks in the pile to which the employees had access, sufficiently strong for the purpose for which this plank was used; also, that it was the recognized duty of the employees to select and put in place the planks between the car and shed. The pile of planks near the shed was for various uses in and about the yard. Some of them were not strong 639 enough for this purpose, but were amply strong for other uses. When, as in this case, it is a part of the employee’s regular and recognized duty to select the planks to'be used, there seems no escape from the conclusion that such selection is a detail of the employee’s work. In such case the appliance is not furnished for the work by the master, but the furnishing and preparation of it is part of the work which the workman is employed to perform. Fraser v. Red River L. Co. 45 Minn. 235. Here the master furnished no particular planks for this particular use. It furnished a large pile of planks and lumber for many different uses in the yard,— some strong enough for this use, and some not, but still fit for other uses. It contracted with its employees, as it might lawfully do, that they should, as part of their work, select and put in place the planks. Thus this became a detail of their work, and under well-settled rules of law the master is not liable for accidents arising from failure to make proper selection. Fraser v. Red River L. Co., supra; Butler v. Townsend, 126 N. Y. 105; Kehoe v. Allen, 92 Mich. 464; Ling v. St. P., M. & M. R. Co. 52 N. W. Rep. (Minn.), 378. The employee who selected the plank and put it in place was a co-employee, within the meaning of the law, though he was not at work at the time the plaintiff was injured. Butler v. Townsend, supra. By the Court.— Judgment affirmed.