
    [No. 5290.
    Decided March 10, 1905.]
    John Millett, Appellant, v. The Puget Sound Iron and Steel Works, Respondent.
      
    
    Master and Servant — Negligence—Fellow Seri ant — Injury to Employee Engaged in Painting Engine by Ac r oe Tester Putting the Same in Motion. Where two empl jyees of the defendant were engaged in painting an engine just sompleted in defendant’s shops, and ceased work to enable anotl er employee to test the engine, and after a short time one of the painters informed the other that the testing was completed an I they could return to work, whereupon he proceeded to do so, in t the engine tester returned and put the engine in motion theriby injuring the painter’s foot in the machinery, the men are fei Low servants engaged in a common employment, and the master is not liable.
    Appeal from a judgment of the superior cour; for Pierce county, Chapman, J., entered February 6, 1904, upon a verdict rendered in favor of the defendant ly direction of the court, after a trial on the merits, dismissing an action for personal injuries sustained by an e nployee by reason of the starting of an engine which he was engaged in painting.
    Affirmed.
    
      Gounor Teats and A. H. Garretson, for appellant,
    contended, among other things, that when Millett was ordered to go upon the engine to finish the painting he had a right to assume that he was going to a place of safety. Green v. Western Am. Co., 30 Wash. 87, 70 Pac. 310; Czarecki v. Seattle etc. Nav. Co., 30 Wash. 288, 70 Pac. 750; Goldthorpe v. Clark-Nickerson Lum. Co., 31 Wash. 467, 71 Pac. 1091; Grout v. Tacoma Eastern R. Co., 33 Wash. 524, 74 Pac. 665; Norton Brothers v. Nadebok, 190 Ill. 595, 60 N. E. 843, 54 L. R. A. 842; Nelson v. Willey S. S. & Nav. Co., 26 Wash. 548, 67 Pac. 237; Christianson v. Pacific Bridge Co., 27 Wash. 582, 68 Pac. 191; Taylor v. Evansville etc. R. Co., 121 Ind. 124, 22 N. E. 876, 16 Am. St. 372, 6 L. R. A. 584. Scholl, the tester, in control of dangerous machinery, was a vice principal. Brabon v. Seattle, 29 Wash. 6, 69 Pac. 365; Goe v. Northern Pac. R. Co., 30 Wash. 654, 71 Pac. 182; Bailey v. Cascade Timber Co., 32 Wash. 319, 73 Pac. 385; Morrison v. Northern Pac. R. Co., 34 Wash. 70, 74 Pac. 1064.
    
      Hudson & Holt, for respondent.
    No duty of superintendence of the details of the work is imposed on the master. 2 Labatt, §§ 586, 587, 588; Ryan v. Cumberland Valley R. Co., 23 Pa. St. 384; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 8 Am. St. 787, 3 L. R. A. 559; Besel v. New York etc. R. Co., 70 N. Y. 171; The Queen, 40 Fed. 694; Kimmer v. Weber, 151 N. Y. 417, 45 N. E. 860, 56 Am. St. 630. The failure to give warning of the starting of the engine could not be anticipated or provided against by the master. Capasso v. Woolfolk, 163 N. Y. 251, 57 N. E. 1021; Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021; Vitto v. Farley, 36 N Y. Supp, 1105. It is not the duty of the master to gu e warning of the dangers that may arise in the execution of the details of the work, and he does not guarantee tl at a place will remain safe during the progress of the worl. Siddall v. Pacific Mills, 162 Mass. 378, 38 N. E. 969; McGowan v. Chicago etc. R. Co., 91 Wis. 147, 64 N. W. 891; Wilson v. Northern Pac. R. Co., 31 Wash. 67, 71 Pac. 713; Minneapolis v. Lundin, 58 Fed. 525; Bergstrom Staples, 82 Mich. 654, 46 N. W. 1035; Porter v. Silver Creek etc. Coal Co., 84 Wis. 418, 54 N. W. 1019; Quigley v. Levering, 167 N. Y. 58, 60 N. E. 276, 54 L. R. A. 62. Under tlie circumstances of this case it was not the dt ty of the master to give warning. New Pittsburgh Coal etc. Co. v. Peterson, 136 Ind. 398, 35 N. E. 7, 43 Am. St. 327; Fournier v. Columbian Mfg. Co., 70 N. H. 629, 44 Atl. 104; O’Brien v. American Dredging Co., 53 N. J. L. 291, 21 Atl. 324; Henshaw v. Pond’s Extract Co., 21 N. Y. Supp. 177; Whatley v. Block, 95 Ga. 15, 21 S. E. 985; Davis v. Muscogee Mfg. Co., 106 Ga. 126, 32 S. E. 30; Wellihan v. National Wheel Co., 128 Mich. 1, 87 N. W. 75; Schroeder v. Flint etc. R. Co., 103 Mich. 213, 61 N. W. 663, 50 Am. St. 354, 29 L. R. A. 321. It is not the duty of the master to protect or warn agains dangers which are transitory. Meehan v. Speirs Mfg. Co., 172 Mass. 375, 52 N. E. 518; Whittaker v. Brent, 137 Mass. 588, 46 N. E. 121; 2 Labatt, §§ 587, 588. The danger that Scholl might turn on the steam at an improper time) was one of the risks assumed by appellant of which the master is not required to warn. Wilson v. Northern Pac. R. Co., supra; Watts v. Hart, 7 Wash. 178, 34 Pac. 423, 771; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905; Taylor v. Evansville etc. R. Co., 121 Ind. 124, 22 N. E. 876, 16 Am. St. 372, 6 L. R. A. 584; Bailey, Personal Injuries, p. 2993; Anderson v. Oregon R. & Nav. Co., 28 Wash. 467, 68 Pac. 863; Hawk v. McLeod Lumber Co., 166 Mo. 121, 60 S. W. 1022. There is a distinction between construction work and work in handling machinery after it has been placed in operation. Metzler v. McKenzie, 34 Wash. 470, 76 Pac. 114; Murphy v. Boston etc. R. Co., 88 N. Y. 146, 42 Am. Rep. 240; Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433; Meeker v. Remington etc. Co., 65 N. Y. Supp. 1116; Fraser v. Red River Lum. Co., 45 Minn. 235, 47 N. W. 785; Colorado Coal etc. Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251; 1 Labatt, §§ 29, 268; 2 Labatt, pp; 1375, 1376, § 589. There was nothing in the act of testing akin to the use of the engine; the trial of the engine was one of the last steps in its manufacture and completion. Murphy v. Boston etc. R. Co., supra. Under these circumstances, Scholl and appellant were fellow servants engaged in the construction of the engine. Murphy v. Boston etc. R. Co., Metzler v. McKenzie, Armour v. Hahn, Meeker v. Remington etc. Co., Fraser v. Red River Lum. Co., Colorado etc. Co. v. Lamb, Porter v. Silver Creek etc. Coal Co., supra; Ryan v. McCully, 123 Mo. 636, 27 S. W. 533; Sheehan v. Prosser, 55 Mo. App. 569; Keith v. Walker Iron etc. Co., 81 Ga. 49, 7 S. E. 166, 12 Am. St. 296; Blazinski v. Perkins, 77 Wis. 9, 45 N. W. 947; Fox v. Sandford, 4 Sneed (Tenn.) 36, 67 Am. Dec. 587; Daley v. Brown, 60 N. Y. Supp. 840; Buckley v. Gould etc. Min. Co., 14 Fed. 833; Wolcott v. Studebaker, 34 Fed. 8; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483; Chapman v. Reynolds, 77 Fed. 274; Mann v. O’Sullivan, 126 Cal. 61, 58 Pac. 375, 77 Am. St. 149. An assurance of safety given by one servant is not binding on the master unless he is a vice principal by virtue of his rank. 2 Labatt, § 596; Martin v. Atchinson etc. R. Co., 166 U. S. 399, 17 Sup. Ct. 603; Balch v. Haas, 73 Fed. 974; McGowan v. St. Louis etc. R. Co., 61 Mo. 528; Schott v. Onondaga County Sav. Bank, 63 N. Y. Supp. 631.
    
      
       Reported in 79 Pac. 980.
    
   Per Curiam.

The appellant was injured v¡ hile in the employ of the respondent^ and instituted this a ;tion to recover damages therefor, alleging in his complai at that the injury was caused by negligence for which the respondent was liable. The respondent owns and operatrs machine shops at the city of Tacoma, and, as a part of i s business, manufactures logging engines. The appellant was employed as a helper in its shop, his duties being t) assist the machinists with their work, and to perform su< h labor as did not require special skill and training. .At the time of the occurrence of the injury for which the appellant sues, the respondent had a number of logging engines nearly completed, and was putting on them the final touches, preparatory to turning them out of the shops. The appellant, with another helper, Charles ! -Iurd, was engaged in painting one of these engines, when another employee, John Scholl, came along and notified them'that he was about to test the engine on which they a7ere painting, whereupon the appellant and Hurd quit uork at the engine. About forty or forty-five minutes thereafter, Hurd came to the appellant, told him that the tester had finished with the engine on which they were formerly working, and that he might go back and finish th ^ painting. The appellant went to the engine, climbed upm it, and was proceeding with his work, when Scholl came back and put the engine in motion, catching the appellant’s foot in the machinery, and crushing it off.

It. is the contention of the appellant that both Scholl and Hurd were vice principals as to him, and that the negligence of either of them would be the negligence of the respondent. But we know of no principle of law on which this contention can he maintained. All three of them were working for a common employer, under a common foreman, in a common enterprise, and in connection with each other. If, under any circumstances, two or more persons working for a common master can he fellow servants, we think they were so in this instance:

Affirmed.  