#### Salus, Appellant, vs. Great Northern Railway Company, Respondent.

*May 22*—

June *17, 1914.*

*Railroads: Injury to employee: negligence of fellow-servant: Unsafe working place: Direction of verdict.*

1. Since the enactment of the Workmen’s Compensation Act the defense that an injury to a shop employee was caused hy negligence of a fellow-servant is not available to a railway company under sec. 1816, Stats.

2. Neither the common-law rule nor the statutory rule as to the duty of the employer to furnish a safe working place is applicable where the employees, in performing a simple and familiar operation, make their own working place, which is constantly changing.

3. In an action for injuries to a shop employee whose hand was pinched as, with a fellow-servant, he was replacing a truck under the end of an ore car, it is *held*that the evidence does not warrant the disturbing of a verdict directed for defendant on the ground that the injury was a pure accident and that no actionable negligence was shown.

4. In executing the simple ordinary movements required by performance of his duties, one servant may rightfully depend upon his fellow-servants to pay some heed to their own situation.

Appeal from a judgment of tbe circuit court for Douglas county: Fbank A. Ross, Circuit Judge.

*Affirmed.*

Action to recover for personal injury wbicb happened to plaintiff March 29, 1913.

*547On tbe occasion in question plaintiff and an associate, employees of defendant in tbe course of their duties as sucb, were engaged in repairing an ore car. They were required to raise one end of tbe car with jack-screws free from tbe truck at sucb end, roll tbe truck back- and rest the end of tbe car on a horse, and, after making tbe necessary repairs, replace tbe truck. They proceeded to tbe point of practically returning tbe truck to its proper location under tbe car, plaintiff pushing on one side and bis associate on tbe other. It was then brought to a stand, and plaintiff, with bis band resting thereon, looked under tbe car to observe tbe exact situation. At that instant bis associate, without warning, pushed tbe truck further under causing plaintiff’s band to b© pinched between tbe car step and tbe truck, whereby tbe band was injured. Tbe claim of plaintiff was that defendant by its co-employee was actionably negligent in moving tbe truck without giving warning. Defendant took issue with tbe allegation as to actionable fault, pleaded that plaintiff and bis co-laborer were shop employees; that be was only slightly injured ; and that tbe accident happened through bis own negligence.

Tbe evidence was to tbe effect that plaintiff was somewhat injured in substantially tbe manner set forth in tbe complaint.

On tbe trial tbe court ruled that tbe whole ground of liability claimed in tbe complaint was' negligence of a fellow-' servant. Thereupon counsel for plaintiff asked leave to amend tbe complaint by alleging actionable liability because of failure to furnish a reasonably safe place for plaintiff to do bis work in. Counsel explained that be desired a pleaded basis for a claim that tbe car was not in a safe position for tbe work plaintiff was engaged in because it was not raised high enough. Tbe application was denied. Tbe court, on motion, directed a verdict in favor of 'defendant upon tbe ground that no actionable negligence of' plaintiff’s co-em*548ployee was shown and upon the further ground that if such employee was negligent proximately causing the injury, he being a shop employee, defendant was not liable.

Judgment was rendered accordingly.

For the appellant there was a brief by *W. P. Crawford,*attorney, and *II. G. Pickering,*of counsel, and oral argument by *Mr. Pickering.*

For the respondent the cause was submitted on the brief of *J. A. Murphy.*

Maeshall, *J.*

So far as the decision below rests upon the theory that the defense of negligence of a fellow-servant was available under sec. 1816, Stats., it is wrong. The statute was superseded by the Workmen’s Compensation Act, as held in *Minneapolis, St. P. & S. S. M. R. Co. v. Industrial Comm.*153 Wis. 552, 141 N. W. 1119.

So if appellant was injured by negligence of his associate respondent is liable unless contributory negligence, strictly speaking, on his part, — inadvertence as distinguished from assumption of risk, — proximately contributed to produce the injury. *Besnys v. Herman Zohrlaut L. Co., ante,*p. 203, 147 N. W. 37.

A point is made on the refusal of the trial court to permit an amendment to the complaint so as to specifically charge violation of duty respecting a safe place to work. It is considered that such rule, either under the statutory or common-law duty, has no application here because appellant and his associates necessarily had to and did make their own place to work. The operation the men were engaged in was simple and perfectly familiar to them. The law, severe as it is in respect to the duty of an employer respecting the working place of his employees, still permits him to leave them to make their own working place, as to simple ordinary details, where they are to be provided from time to time and changed at short intervals. It would be utterly impracticable and *549unreasonable to require the employer to be responsible for snob a situation at every moment of time and regardless of any actual information as to imperfection, even such as to put him on inquiry in respect to the matter. If the working place in question was unsafe, the employer did not know it, nor had any reasonable ground to know it, and the fault was attributable to appellant himself, — not in the field of assumption of risk but in the distinct field of negligence.

The only other question which seems to be of sufficient importance to call for special notice is as to whether there was evidence tending to show that negligence of appellant’s associates was the proximate cause of his injury. True, a question is raised as to the course of examination which the court permitted respondent’s counsel to pursue with reference to one of appellant’s witnesses. It is mentioned so counsel may not think that it did not challenge our attention. The exact nature of the objections need not be set 'forth, since in any view we could take of the matter, the examination was either proper or nonprejudicial.

The trial court was of the opinion that 'there was no negligence of a fellow-servant shown, — that looking at the evidence in the most favorable view for appellant which can be reasonably taken of it, the injury was a pure accident. .We are unable to see the contrary with sufficient clearness to warrant condemning the trial court’s judgment. The evidence is quite clear that when the truck was moved out from under the car it was found that there was ample clearance therefor. When it was pushed back both of the- men- had a hand at the matter, appellant pushing on one side and his associate on the other, both bent somewhat forward so as to enable them to sight under the car. It may be that the truck came to a stand and was momentarily started again and unexpectedly to appellant; but there is no satisfactory, if any, evidence, that appellant ordered the truck stopped and that it was again started without orders or warning. He seems to have *550taken bold to Help push tbe truck back after observing that bis associate needed help; that be put bis band on tbe truck at tbe time and did not change its position until be was injured. It was no part of bis associate’s business to observe tbe exact location of bis band. Sucb associate was bent forward, intent upon bis work, and evidently did not notice tbe position of appellant’s band. He was in tbe act of moving tbe truck back to its proper place, as be supposed, and, probably, ready to desist as soon as ordered, or satisfied from bis own observation that tbe proper place bad been reached. It does not seem that be bad any reason to suppose that bis simple act of pushing tbe truck back as both desired in any way imperiled tbe personal safety of appellant.

A fellow-servant must be free to execute simple ordinary movements in tbe performance of bis duties and depend upon bis associates,, in tbe exercise of like liberty of action, to pay some heed to their own situation. Otherwise all tbe little accidents which occur from time to time in working operations would be attributable to negligence. There can be no negligence without fault. There can be no fault so long as a person is within tbe field of what be may rightfully do. Liability of the' employer for accidents to employees which are not attributable to negligence of any one, is provided for under tbe Workmen’s Compensation Act; but it does not appear that when tbe occurrence in question took place respondent bad complied with sucb act. Therefore, appellant is without remedy, since there was no actionable negligence on tbe part of any one, as the trial court held under sucb circumstances that we cannot well decide that be was clearly wrong.

*By the Court.*— 'The judgment is affirmed.