Jarnek v. Manitowoc Coal & Dock Co.

Maesi-ialu, J. Familiar principles of law govern this case. It is the duty of the master to furnish his servant with rea [540] sonably safe and suitable tools and machinery to work with, a reasonably safe place in which to do his work, and reasonably competent and safe co-employees where co-employees are needed. Ordinary care and prudence in the performance of such duty is personal and absolute, and if its performance be delegated by the master to another, negligence in that regard, by such other, will be imputed to the master. But where the duty has been performed and a personal injury to an employee nevertheless occurs through the negligence of a co-employee in the use or management of the tools or machinery furnished or otherwise, the wrong is solely that of such co-employee, and the master is not liable. Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, is a conspicuous example of the last rule stated; and Cadden v. American Steel Barge Co. 88 Wis. 409; Eingartner v. Illinois Steel Co. 94 Wis. 70; Promer v. M., L. S. & W. R. Co. 90 Wis. 215, and McClarney v. C., M. & St. P. R. Co. 80 Wis. 277, of the first rule stated. The sole question here is, Within which of the rules does this case come ? If the putting up of the timber was a part of the work of moving the coal, in which plaintiff and his associates were engaged, then the negligence complained of was that of a co-employee. If such putting up of the timber was separate and distinct from the work of adjusting the appliances to it, or from using the appliances, when so adjusted, to move the coal, and plaintiff had no duty to perform in respect to the safety of the timber, then the negligence which caused his ipjury was that of the defendant. The jury found that the foreman, Leverenz, was vested with the duty of constructing the appliances for handling the coal. That seems to negative the idea that plaintiff had any duty to perform in that regard, but counsel for defendant contend that the evidence conclusively shows that plaintiff was one of a crew whose duty it was to move the coal; that the construction of the appliances to do the work naturally included, and in fact did include, the putting up of the timber,. [541] hence that the negligence that produced the injury was that of a co-employee. On that theory it is insisted that the motion to direct a verdict in defendant’s favor should have been granted, and that the verdict rendered should have been set aside as contrary to the evidence. After a careful consideration of all the evidence bearing on the question presented, it is considered that it not only does not support the view taken by defendant, but that it pretty conclusively shows that the putting up of the timber was entirely independent of the work of using it to move the coal, and that the duty as to the former devolved upon the foreman, who represented the master, as found by the jury. The foreman, in testifying as to the appliances which the men usually put up, does not mention the timber to which the appliances were attached. The timber took the place of a boom, with which all pockets, except the one where the accident occurred, were furnished as permanent structures. The foreman testified that, there being no boom at the pocket, he directed Bry to put up the timber. Bry appears, satisfactorily, to have been a person specially employed to do mechanical work when there was such work to do. It was on that account that he was sent to put up the timber. The foreman further testified that the appliances the men usually put up consisted of a slide, line, block, bell cord, bell line, and bucket. He did not say that the timber was included. The evidence further shows that Bry put up the timber as he was directed to do, with the help of another person he called to assist him, and it strongly tends to show that plaintiff did not have anything whatever to do with it. In view of the condition of the evidence stated in what has preceded, we cannot say that there is no evidence to sustain the finding of the jury that the responsibility for the safe placing of the timber was on the foreman, or that the court erred in the effect given to such finding in the final [542] disposition of the case. The tools and machinery with which plaintiff was working when injured, and his working place,, were not reasonably safe. Ordinary care was not used to-make them safe. The negligence of the foreman in that regard is imputable to the defendant. That was the legal effect of the verdict, within the rule of Cadden v. American Steel Barge Co. 88 Wis. 409, and Eingartner v. Illinois Steel Co. 94 Wis. 70, as found by the court. No error is found in the record. By the Court.— The judgment of the circuit court is affirmed.