#### McKillop, Appellant, vs. Superior Shipbuilding Company, imp., Respondent.

*October 5*—

October *25, 1910.*

*Master and servant: Injury caused by negligence of fellow-servant.*

1. The question whether or not employees of a common master are fellow-servants does not depend upon the rank or grade of the negligent servant, hut upon the nature or character of the act in the performance of which the injury was incurred.

2. A pile-driver crew and their foreman engaged in the common employment of taking down and removing a pile-driver were fellow-servants so that the employer'was not liable for an injury to one of the crew caused by the foreman’s negligence in preparing the pile-driver for removal by loosening certain fastenings in such a way that the pile-driver or a part of it was likely to fall, although the injured workman did not know of , the insufficiency of the fastenings and was assured by the foreman that there was no danger, — the details of the work being as. obvious to him as to the foreman. *Holloway v. H. W. Johns-Manville Co.*135 Wis. 629, distinguished.

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

*Affirmed.*

*455This action was brought to recover for personal injuries. Tbe allegations of tbe complaint so far as material here are: That tbe defendant *Superior Shipbuilding Company*now is, and that during all of tbe times hereinafter mentioned it has been, a corporation duly organized and existing under and pursuant to tbe laws of tbe state of Wisconsin, with its principal office and place of business in tbe city of Superior, county and state aforesaid; that, among other things, its business, during all of said times, consisted in building, constructing, overhauling, and repairing ships, sailing vessels, and other water craft; that, in connection with its business, it at all times owned, maintained, operated, and used large shops, factories, and the usual tools and appliances' in connection therewith, situate in said city of Superior; that among other appliances, during said times, it owned, maintained, and used and operated what is commonly known as a swing pile-driver in said city and its works, consisting of a foundation, constructed of wood and iron, so'constructed as to turn upon a, central point or pivot, and of an upright structure of considerable height, in which worked and operated the weight known as the driver, and of two upright bents, each of which consisted of two upright timbers, each about one foot square and about twelve feet high and about eight feet apart, with a cross timber or cap connecting the two upright timbers, each about twelve inches square and eight feet long, which timbers were fastened to said foundation in said upright position, and in connection with .and as a part of said swing pile-driver was an engine with which the weight was raised and lowered *-f*that on the 7th day of November, 1908, plaintiff was* in the employ of the defendant company for hire as a laborer, being one of the pile-driving crew herein referred to, engaged in the performance of his duties at defendant’s works in said city of Superior; that on said date and for a long time immediately prior thereto the defendant William Bennett was in the' employ of said defendant company as foreman of the crew *456engaged in the work of operating said pile-driver and driving piles with the same, and that said defendant Bennett at all times had full authority over said crew at said place, to whose orders and directions said crew were at all times subject; that on said 7th day of November, 1908, the defendants, through said Bennett and crew, were engaged in taking apart and taking down and removing said swing pile-driver; that on said 7th day of November, 1908, at about half-past 11 o’clock in the forenoon, the defendant Bennett and said crew were engaged in the work of removing from its position one of said two bents; that the other bent was then and there in its position, standing erect upon said foundation, and that the bent which the defendants were then and there removing was, when the plaintiff was ordered by the defendant Bennett to assist in said work, standing erect and in said position, but that the fastenings holding the same in position had been removed preparatory to lowering the same, by means of ropes and appliances, from its position down to the ground; that the defendant Bennett, and before plaintiff was ordered by the foreman to do the work hereinafter described, without any notice to or knowledge on the part of plaintiff of such facts, had also removed the fastenings holding said other bent in position, so that said bent was likely to fall and injure plaintiff or any other employee working near the same unless said bent was or had been securely fastened in said position while ■said other bent was being lowered, all of which facts were well known to defendant Bennett and none of which were known to the plaintiff, and that the plaintiff did not have .any means or knowledge of ascertaining such facts, and that the defendant Bennett did not give him any notice or warning of such conditions; that with said bent securely fastened, then the work of lowering and removing the bent which was being lowered and removed at the time of the accident was safe and free from any danger; that the defendant Bennett, prior to the time plaintiff was ordered to do the work here*457inafter referred to, bad looped a rope around tbe cap or •cross-piece of tbe bent that was not being lowered, and bad" tied one end of such rope to tbe foundation of said swing pile-driver, at a point near tbe bent that was to be lowered, and bad fastened tbe other end of tbe rope in a similar position on tbe opposite side of said bent, and that tbe said defendant bad then and there carelessly, negligently, and wrongfully failed to tie or fasten said rope to said cap or. cross-piece .so as to prevent said bent falling or being moved from its position, and bad carelessly, negligently, and wrongfully so looped said rope over said cross-piece or cap or bad placed tbe •same in said position in such manner that it would not bold and could not bold said bent in its position, and bad carelessly, negligently, and wrongfully left tbe same standing without any fastening or anything bolding tbe same so as to prevent tbe same falling, all of which facts were well known to tbe defendant Bennett and none of which were known to tbe plaintiff, and that tbe plaintiff did not have any means of ascertaining such facts; that tbe defendant Bennett, before calling plaintiff to assist in lowering said bent, bad fastened a rope to tbe cross-piece or cap of tbe bent to be lowered, and bad caused tbe same to be extended therefrom across tbe top of tbe cap or cross-piece of said other bent, and then bad passed said rope down and beyond ^aid second bent and fastened tbe same to tbe drum of tbe engine for tbe purpose of enabling an employee of tbe defendant company to bold said rope around said drum and to slack it away or loosen it as said bent was being lowered down and away; that said rope as so placed, and as soon as tbe defendant Bennett started to lower said bent, necessarily would press against tbe top of tbe bent not being lowered, and necessarily pressed against the top of said bent and tended to press or push said bent towards tbe one being lowered; that such pressure would not endanger said bent falling bad it been tied with reasonable care in a secure position or bad tbe fastenings not been removed there*458from before attempting to lower said bent; but that in the position and condition in which said bent had been placed and was left by the defendant Bennett the pressure of said rope was sure to cause said bent to fall and injure plaintiff or other employees while engaged in the work hereinafter described, all of which facts were well known to the defendant-Bennett and none of which were known to plaintiff, and that plaintiff did not have any means of knowing of the conditions, as hereinbefore described, save and except he knew that said rope extended over the top of said bent and would press-against the same in the lowering of the bent which was being-lowered, but that the plaintiff believed and had every reason to believe that said bent not being removed was securely fastened in the position it occupied; that thereupon the defendant Bennett called plaintiff from other work which he-was doing, not connected with the lowering of said bent or the securing of such bent in position, and ordered and directed him to stand at the bottom of the bent being lowered and hold the bottom of one of said upright timbers so as to prevent its-slipping from position or back towards said other bent while said bent was being lowered, and that the defendant Bennett thereupon, and after plaintiff had taken said position, proceeded to let out said rope from around said drum by and through an employee and proceeded to lower said bent down and away from said other bent not being lowered; that the plaintiff, just as the said bent was about to be lowered and while he was in said position, was assured by said defendant Bennett that said other bent was securely fastened and that there was no danger of its falling upon said rope being-pressed against said cap or top, and that the plaintiff relied upon such assurance and believed the same to be true, and in the due and proper performance of his work turned his back to said bent and faced the bent that was being lowered and engaged in the performance of his duties to which he was assigned; that immediately when said rope pressed against-*459tbe top of said cap or said other bent, and solely on account of tbe fact that it was not securely fastened and was loose, said bent immediately started to fall and did fall towards-plaintiff, striking him on tbe back and back of bis neck and bead with fearful force and violence, knocking him down and crushing and injuring him as hereinafter described, and that tbe sole cause of said accident and injuries was tbe careless, negligent, and wrongful acts and omissions of tbe defendants as hereinbefore set forth.

After a witness bad been sworn and plaintiff was about to-proceed with bis case, tbe'defendant objected to any evidence-under tbe complaint on tbe ground that it appeared upon tbe face thereof that it did not state facts sufficient to constitute a cause of action against tbe defendant *Superior' Shipbuilding Company,*which objection was sustained. Thereafter judgment was entered in favor of tbe defendant *Superior Shipbuilding Company*and against tbe plaintiff dismissing the complaint, from which judgment this appeal was taken.

The cause was submitted for tbe appellant on tbe brief of *Henry C. Wilson*and *Samuel A. Anderson,*and for tbe respondent on that of *Frank A. Boss.*

KebwiN, J.

Tbe question involved upon this appeal is whether tbe complaint states a cause of action against tbe defendant *Superior Shipbuilding Company.*This question turns on whether tbe injuries received by plaintiff were caused by the negligence of a fellow-servant of tbe plaintiff. We have set out in the statement of facts the material allegations charging negligence and ne'éii not repeat them here. From these allegations it appears th\t tbe plaintiff and defendant Bennett were engaged in tbe common employment of removing the pile-driver at tbe time of the accident, tbe defendant Bennett being foreman, and plaintiff one of tbe crew so engaged, and that through tbe negligence of defendant Bennett a part of tbe pile-driver fell and injured plaintiff. *460'True, it is alleged that defendant Bennett negligently prepared the pile-driver for removal by loosening certain fastenings holding the same in position so that said pile-driver or a part thereof was likely to fall, which facts were known to defendant Bennett but were unknown to plaintiff, and that plaintiff had no means of knowledge thereof, and was assured by defendant Bennett that the bent, or part which fell, was .-securely fastened, whereas it was not, in consequence of which it fell and caused the injury. The complaint expressly ■alleged a common employment, namely, that defendant Bennett and his crew, of which plaintiff was one, were at the time ■of the accident engaged in removing the pile-driver or a bent thereof. So we cannot escape the- conclusion that the negli.gence of defendant Bennett that caused the injury was the negligence of a fellow-servant of the plaintiff. The loosening of the fastenings preparatory to taking down the pile-•driver was a mere detail of the work in which defendant Bennett and plaintiff were engaged when the accident occurred which caused the injury. The instant case is quite analogous to *Peschel v. C., M. & St. P. R. Co.*62 Wis. 338, 21 N. W. 269. In that case the foreman and plaintiff were engaged with others in building a tank. Plaintiff was under •the supervision of the foreman. At the time of the accident plaintiff was engaged in the line of his duty in helping to raise the tank. The hoisting apparatus provided for raising the bents consisted of a windlass, three tackle blocks, two ropes, the tank itself, and an anchor post set in the ground sixty feet distant from the tank, opposite to and in line with the bents. After the tank had been raised a few feet, the anchor post, which had been sunk in- the ground, suddenly pulled out and the bent fell, causing the injury. The jury found that the foreman was negligent in setting the anchor post, and it was held that such negligence was the negligence of a fellow-servant of plaintiff engaged in a common employment, therefore plaintiff could not recover. See, also, *Gereg*
      *461
      *v. Milwaukee G. L. Co.*128 Wis. 35, 107 N. W. 289. No claim is made in tbe complaint that defendant failed to furnish suitable and safe machinery and appliances or that defendant Bennett was incompetent. As has often been ruled by this court, whether employees are fellow-servants does not depend upon the rant or grade of the negligent servant, but “upon the nature or character of the act in the performance of which the injury was incurred.” *Dwyer v. Am. Exp. Co.*82 Wis. 307, 52 N. W. 304; *Stutz v.*Armour, 84 Wis. 623, 54 N. W. 1000; *Wiskie v. Montello G. Co.*111 Wis. 443, 87 N. W. 461; *Okonski v. Pennsylvania & O. F. Co.*114 Wis. 448, 90 N. W. 429.

• The plaintiff relies upon several decisions of this court, and mainly upon *Holloway v. H.*W. *Johns-Manville Co.*135 Wis. 629, 116 N. W. 635. It is true that the *Holloway Case*is quite similar in many respects to. the case now before us, but we believe it is distinguishable. In that ease the boiler was prepared by the night crew. The plaintiff had no connection with the blowing off and preparing of the boiler for cleaning. He came to the spot in the morning to clean the boiler as he was directed to do. 'Mere outside inspection would not disclose that it was not thoroughly cooled. The superior officer ordered plaintiff to go to work in the boiler at once, assuring him that it had been tested and was cool enough. It is true that in the case before us it is alleged that Bennett assured plaintiff there was no danger, and that plaintiff did not know the danger, but plaintiff was engaged with Bennett in the act of taking down the pile-driver and in position to observe the details of the work, which must have been as obvious to him as to the defendant Bennett. We are also cited to *Rankel v. Buckstaff-Edwards Co.*138 Wis. 442, 120 N. W. 269; *Grams v. C. Reiss C. Co.*125 Wis. 1, 102 N. W. 586; *Sparling v. U. S. S. Co.*136 Wis. 509, 117 N. W. 1055; *Halwas v. Am. G. Co.*141 Wis. 127, 123 N. W. 789, and some other cases. We shall not discuss these cases, but. *462simply say tbat we do not regard tbem controlling bere, or •out of barmony witb tbe conclusions reached in tbe instant case. Tbe court is of opinion tbat tbe complaint does not •state a cause of action against tbe defendant *Superior Shipbuilding*Company, and therefore tbe judgment of tbe court below must be affirmed.

*By the Court.*— Tbe judgment below is affirmed.

.ViNJE, J., took no part.