
    [No. 2944.
    Decided June 22, 1898.]
    John Hammarberg, Respondent, v. St. Paul and Tacoma Lumber Company, Appellant.
    
    MASTER AND SERVANT — PERSONAL INJURY — FELLOW SERVANT.
    A millwright employed to make repairs and alterations about a mill and a sawyer engaged in operating a saw therein are not fellow servants; and where the millwright, while employed in making alterations in the mill, above where the sawyer is at work, leaves a heavy chisel on a beam, from which it is jarred by the vibration of the machinery, causing it to fall and injure the sawyer, the latter can recover from their common employer for the injuries sustained.
    Appeal from Superior Oourt, Pierce County. — Hon. J. A. Williamsoh, Judge.
    Affirmed.
    
      Sharpstein & Blattner, for appellant.
    
      Snell & Bedford, for respondent.
   The opinion of the court was delivered by

Dunbar, J.

The appellant is engaged in operating a lumber mill in Pierce county. The respondent was in his employ in the capacity of day laborer. A day or two before the occurrence of tbe injury for which he claims damages, the respondent was put to work on a cut-off saw in the mill, where -he was working at the time the accident out of which the injury grew occurred. At the time the respondent went to work in the mill, millwrights were engaged in repairing some beams directly over the bench on which he was working. These beams were for the reception of shafting in connection with the lath mill, which was being removed from another part of the mill. The work of running the cut-off saw required no particular skill, any ordinary operator on the mill force being able to run this saw. One of the millwrights, Hinemire by name, had occasion to leave the work on which he was engaged for a few minutes, and he left on the beam which was over the bench on which respondent worked, and which, as we gather from the record, was a timber about ten inches square, a large chisel some two feet long and weighing, according to the testimony, from six to ten pounds. Presiimably from the vibrations caused by operating the mill, the chisel fell off while respondent was stooping over getting a stick to apply to the cut-off saw, and struck one of his legs, severely injuring him. For this injury this action was brought, and a recovery was had in the lower court.

Upon the conclusion of the respondent’s testimony, a non-suit was asked by the appellant, which was refused by the court, and testimony was introduced by the defendant. There is no material conflict in the testimony. There is considerable testimony going to show that there were no particular vibrations, and that tools had been left on these beams and that they had never fallen off before; but this testimony is purely immaterial, for the reason that in this particular instance the chisel did fall off.

It is claimed by the respondent that it was the duty of the master to furnish a safe place for the workmen, and this proposition, of course, is not, and cannot be, questioned by the appellant. But the latter’s contention is that the millwright, throiigh whose negligence the chisel fell, was a fellow-servant of the respondent, and therefore that the master is not responsible. In fact, this is the sole question in the case.

The history of the doctrine of fellow servants is exceedingly interesting, but its reading forces upon the mind of the student the conviction that the application of the doctrine has been unwarrantably extended. Its original application was based upon the plainest principles of justice, and the doctrine was applied to persons who were working in a common employment and who had an opportunity to observe, if not to a certain extent control, the actions and methods of those with whom they were working and who were in reality, under the plainest definition of the term, their fellow servants. Thus, so far as rural employments were concerned, if two men were engaged in loading a wagon with hay, and it was so overloaded or so unskillfully loaded that it toppled over, thereby injuring doctrine of fellow servants is ex-one of the laborers, the master could not justly be held liable; and the doctrine of fellow servants, for obviously just reasons, was applied, for the laborers had in hand and under their control the performance of this work and were in a sense both of them agents or vice-principals of the master. In manufacturing employments it was the same. The doctrine was applied simply and humanely on the theory that, standing on a level with each other, both as to employment and authority, they had notice which the master necessarily could not have of the dangers liable to result from the action of the workers; and, in thus noticing and continuing in the employment without an attempt to rectify it, to them it was a disclosed or apparent danger, the perils of which they assumed, and the doctrine of non-liability of the master for the action of fellow servants must be sustained upon this principle, if sustained at all. But with the increasing of manufacturing and transportation business, with the complications arising from this increasing business and the introduction of new methods and new conditions, these plain principles, it seems to us, have been lost sight of by many courts, or rather their application has not been consistent with the changing conditions. Plain terms have received artificial, instead of common sense and p3’actical, construction. The result has been exactly the opposite from the intention in the original application of the rule, and employees have been unjustly held responsible for the actions of persons in whose employment they had no authority, whose competency they had no way of testing, over whose actions they had no advisory control and no chance of observation, and, more than this, whose peremptory orders they were compelled to obey. The result has been that this principle, which in its primary application was just and beneficent, has been made, by inharmonious and indiscriminate application, to work oppressive wrong. It is gratifying, however, to observe that recently judicial opinion seems to favor a restriction of the doctrine of non-liability for the actions of fellow servants/and the English rule, that a servant in command is a fellow servant, has been repudiated by a great majority of the American cases, and it seems now to be pretty well established that, in order to constitute one a fellow servant, he must be in the same common employment with the one who has suffered from his negligence. Shearman & Redfield, Negligence (4th ed.), § 234. And the question of whether particular employees are fellow servants is in some states submitted to the jury. Mullan v. Philadelphia & S. M. S. Co., 78 Pa. St. 25 (21 Am. Rep. 2).

The rule was announced in that case that the risk which the laborer assumes from the neglect of his fellow is where they are co-operating in the same business, so that he knows that the employment is one of the incidents of their common service. It has been held in Georgia that none are deemed to be in a common employment who have no opportunity to use precautions against each other’s negligence. Cooper v. Mullins, 30 Ga. 146 (76 Am. Dec. 638). And this, we think, is in strict consonance with the just theory upon which the rule was first recognized.

Applying these principles to the case at bar, it seems to us that the millwright, in this instance, could in no sense be considered a fellow servant of the sawyer below. He was not in the same employment. He was not engaged in manufacturing lumber, which was the business of the mill. The sawyer had no opportunity to use precautions against his negligent acts. It is the conceded duty of the master to furnish a safe place for the employee to work in. If the original construction of these beams had been faulty, there is no question of the liability of the master. If this chisel had been left upon this beam when the mill was originally constructed and before tbe manufacturing business commenced, and had fallen off upon one of tbe workmen, it cannot be said that tbe,master bad supplied tbe workman with a safe place to work. It would seem that, so far as the rights of tbe workmen were concerned, no different principle could be brought to bear against bis interests, when tbe chisel which caused tbe injury was left upon tbe beam after be bad gone to work, and because tbe construction which tbe millwright produced was produced after tbe original construction of tbe building.

In Sadowski v. Michigan Car Co., 84 Mich. 100 (47 N. W. 598), tbe court said:

“ Tbe rule adopted by tbe federal courts, and in most of tbe states, and which seems to us most in consonance with reason and humanity, is that those employed by tbe master to provide or to keep in repair tbe place, or to supply tbe machinery and tools for labor, are engaged in a different employment from those who are to use tbe place or appliance when provided, and they are not therefore, as to each other, fellow servants. In such case, the one whose duty it is to provide and look after tbe safety of tbe place where tbe work is to be done represents tbe master in such a sense that tbe latter is liable for bis negligence.”

In Nord Deutscher Lloyd S. S. Co. v. Ingebregtsen, 57 N. J. Law, 400 (31 Atl. 619, 51 Am. St. Rep. 604) tbe court, in discussing this question, says, among other things:

“ In determining whether an employe, through whose negligence defects in tbe machinery have failed of discovery or repair, is a representative of tbe master in tbe discharge of tbe master’s duty to tbe servant, or is a fellow servant of tbe latter, engaged in a common employment, many incongruous decisions have been rendered. On this topic a rational distinction would seem to be that, when tbe employé’s duty to inspect or repair tbe apparatus is incidental to bis duty to use tbe apparatus in the common employment, then be is not intrusted with tbe master’s duty to bis fellow servant, and tbe master is not responsible to his fellow servant for his fault, but that, if the master has cast a duty of inspection or repair upon the employe who is not engaged in using the apparatus in a common employment with his fellow servant, then that employe, in that duty, represents the master, and the master is chargeable with his default.”

In this instance the master, through the millwright, was repairing or constructing a cei-tain addition to this building. This was certainly a different employment from th'at in which the respondent was engaged, and the duty of the inspection of these repairs and of using the tools by which the repairs were made was a duty cast, by the very necessities of the employment, upon the millwright and not upon the sawyer. We think, therefore, that the millwright represented the master and, under the well recognized xnxle that the master cannot escape x*esponsibility by delegatixxg his power to another, we think the master in this instance was responsible for the negligent act of the xnillwright in leaving the chisel where it was liable to fall and injure workmen below.

We find no error in the giving or refusing to give instructions by the court, and the judgment will therefore be affirmed.

Gordos: and Reavis, JJ., concur.

Ahders, J., not sitting.  