#### Rankel, Appellant, vs. Buckstaff-Edwards Company, Respondent.

*February 19*

March *9, 1909.*

*Master and servant: Injury to servant: Independent contractor: Negligence of fellow-servant: Care in selection:*W7io *are fellow-servants: Assumption of rislc: Duty to warn servant of dangers.*

*1.*One H. was employed by defendant at a certain compensation per day to procure the necessary workmen and attend to the construction of a mill, defendant to furnish all materials and to pay, through H., the men hired by the latter. Defendant exercised a control over,the undertaking to the extent of directing its progress, course of procedure, and general management. *Held,*that H. was not an independent contractor, and that the workmen were employees of defendant.

2. A master is not liable for injuries to a servant caused by negligence of a fellow-servant, if he used reasonable care in selecting the fellow-servant for the work in question, acting upon such information as to his skill and competency as ordinarily prudent men act upon under the same or similar circumstances.

*4433. The evidence in this case is *held*to show that defendant was not. negligent in the selection of a servant to break up with dynamite the frozen ground where a mill was to be built.

4. One employed for the special work of breaking up with dynamite-the frozen ground where a mill was to be erected was not a. fellow-servant of a workman engaged in excavating the earth who, beyond assisting in driving the holes in which the charges of dynamite were placed, took no part in the separate and distinct operation of blasting; and the common master is liable-to such workman for injuries resulting from negligence of the blaster. *Wiskie v. Monlello G-. Go.*Ill Wis. 443, distinguished.. Mabshaix, J., dissents.

5. The workman in such a case who, after the blaster had pronounced the place safe for continuing the work of digging, was. injured by striking with his pick an unexploded charge of dynamite, is *held*not to have been informed of or to have had reason to apprehend the particular danger, so as to be chargeable with assumption of the risk.

6. It is the duty of a master using hazardous agencies in the conduct of his business to warn his servants, not informed on the-subject, of the extraordinary risks attending such use.

Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Oircu.it Judge.

*Reversed..*

This is an action for tbe recovery of damages for personal injuries alleged to be due to tbe negligence of tbe defendant.

Tbe defendant conducts a manufacturing plant for tbe production of ebairs, caskets, etc. In 1907 it was determined to-add a sawmill to tbe defendant’s plant. Tbe mill was to be built upon a marsby ground into which spiles were to be-driven as a foundation for tbe structure. Tbe construction of tbe sawmill' required tbe removal of certain old structures as well as tbe building of tbe new one. Tbe defendant company negotiated witb one Heidlinger for tbe removal of tbe old structures and tbe construction of tbe new mill. Heid-linger stated that be could not figure upon tbe work and undertake it because it involved tbe destruction of tbe old and' tbe construction of tbe new structures, and they arranged that Heidlinger was to receive $5 per day for bis time and services. He was to procure whatever workmen might be needed,. *444keep account of their time and their wages, present defendant with a statement showing the amount of money needed to pay the wages of such workmen, receive this amount with his own wages from the defendant, and therefrom pay the men. All the materials to be used in the construction were to be ■furnished by the defendant. Ileidlinger prepared the plans for the mill. The work was started in the early part of the year, when the surface of the ground was frozen to the depth of about two feet. It was necessary to remove the frozen earth in order to be able to drive the spiles for the foundation. Ileidlinger procured laborers to excavate and remove the frozen earth, among them the plaintiff. Eor a few days they worked with crowbars, picks, and shovels. To expedite the work Ileidlinger consulted with an officer of the defendant and suggested that the frozen earth might be removed more rapidly and easily if it were broken with dynamite. The officer desired to send for dynamite, but Ileidlinger stated that he did not know anything about dynamite and how to set and explode it. He-was then directed to consult the owner of a stone quarry outside the city of Oshkosh in order to procure a competent man to do the blasting. Ileidlinger consulted the owner of the quarry, and on his recommendation ■engaged a man in his employ, one Spanbauer, to do the blasting. Spanbauer had worked for the owner of the quarry for five or six years at breaking stone. He had observed the way in which blasting was done at the quarry and had done some blasting there.

Preparatory to the blasting of the frozen earth the workmen engaged in breaking up the ground drove an iron bar into the ground with a sledge hammer. "When the iron had been driven into the ground to the desired depth the bar was withdrawn and the workmen retired and took no part in the blasting operation. Spanbauer was the only man at work on the grounds of the defendant who had had any experience with dynamite, and when the hole had been made he charged it by placing the dynamite in the hole, placing the exploding *445cap on it, making tbe necessary electrical connections, filling tbe bole witb eartb and tamping it down, and be then exploded tbe charge. Several charges of dynamite were exploded at tbe same time by having a series of charged boles connected witb tbe one electrical instrument used to discharge tbe exploding caps. Four charged boles were connected for tbe last blast made by Spanbauer. About one of tbe boles the eartb was not thrown up as about tbe other three, and Span-bauer then again connected tbe wires from this bole witb bis electrical apparatus and ran a current through tbe wires. No explosion followed, and Spanbauer made an examination of tbe ground in tbe vicinity of tbe bole and saw a crack about one and one-balf feet from tbe bole. He attributed tbe crack to tbe supposed explosion of tbe charge in tbe bole, and told tbe men to proceed witb tbe digging, that everything was all right. Subsequently plaintiff while working in this vicinity struck the unexploded charge of dynamite with a pick, and by tbe ensuing explosion lost tbe sight of both bis eyes and suffered other injuries.

There was evidence in tbe case that a careful workman, witb a knowledge of bow to blast in frozen ground, in case of doubt as to whether or not a charge bad been exploded, witb a wooden spoon would carefully remove tbe eartb which bad been tamped into tbe bole and thus assure himself that tbe charge bad been exploded. When several charges of dynamite are discharged by tbe same electrical discharge tbe several explosions occur simultaneously, and it is impossible to tell from tbe sound whether all have been exploded.

At tbe conclusion of the'plaintiff’s evidence tbe court refused to grant a nonsuit, but at tbe conclusion of tbe defendant’s testimony tbe court directed a verdict for tbe defendant on tbe ground that tbe plaintiff was not in tbe employ of tbe defendant at tbe time of tbe injury and because tbe plaintiff was a fellow-servant of tbe blaster, Spanbauer. This is an appeal from tbe judgment on tbe verdict as directed.

For tbe appellant there were briefs by *Eaton &*Eaton, at*446torneys, and *H. B. Jackson,*of counsel, and oral argument by *M. H. Baton*and *H. B. Jachson.'*

To tbe point that Span-bauer and the plaintiff were not fellow-servants, they cited, among other cases, *Schultz v. C., M. & St. P. B. Go.*48 Wis. 375, 379; *Grams v. G. Beiss 0. Go.*125 Wis. 1; *Smith v. G., M. (& St. P. B. Go.*42 Wis. 520; *Promer v. M., L. S. & W. B. Go.*90 Wis. 215; *Oadden v. Am. S. B. Go.*88 Wis. 409; *McMahon v. Ida M. Go.*95 Wis. 308; *North Chicago B. M. Go. v. Johnson,*114 Ill. 57; *Salmons v. N. <& W. B. Co.*162 Fed. 722.

For the respondent there was a brief by *Williams & Williams,*attorneys, and *Barbers & Beglinger,*of counsel, and oral argument by *G. E. Williams, Fred Beglinger,*and *Charles Barber.*

They cited, besides other cases, *Wislcie v. Montello G. Go.*Ill Wis. 443; *Olconslci v. Pa. & O. F. Co.*114 Wis. 448; *Ilamann v. Milwaukee B. Go.*127 Wis. 550; *Gereg v. Milwaukee G. L. Go.*128 Wis. 35; *Dahllce v. III. S. Co.*100 Wis. 431; *Peschel v. O., M. & St. P. B. Go.*62 Wis. 338; *Williams v. North Wis. L. Go.*124 Wis. 328; *Alaska M. Go. v. Whelan,*168 U. S. 86; *Petaja v. Aurora I. M. Go.*106 Mich. 463.

Siebecker, J.

The plaintiff challenges the correctness of the trial court’s ruling as to all the questions involved in directing a verdict for the defendant. We will examine them as presented.

The first contention is that the plaintiff was in the employ of the defendant as its servant at the time of the accident. This is denied by the defendant, and it asserts that he was in the employ of one Heidlinger, who, it claims, had contracted to erect the mill for the defendant. The facts adduced establish that Heidlinger was employed by the defendant to attend to the construction of the mill, the defendant to pay him a compensation at the rate of $5 per day for the time he was so engaged. It also appears that the defendant was to fur-*447liisb all tbe materials for tbe structure aud. for tbe prepara-tiou of tbe grouuds, aud tbat it was to pay tbe daily wages ■of all tbe meu needed in erecting tbe structure. Tbe men were hired by Heidlinger, and be took account of tbeir time .and presented it to tbe defendant’s officers, received tbe amounts due bim for wages and due tbe men wbom be bad engaged, and paid tbem, retaining out of tbe sum so paid bim by tbe defendant tbe amount due bim as ‘compensation for bis time at tbe rate agreed upon by bim and tbe defendant. It is also shown tbat tbe defendant’s officers exercised a control over tbe undertaking to tbe extent of directing its progress, course of procedure, and general management. Tbe evidence does not establish tbat defendant and Heidlinger agreed tbat Heidlinger was to have tbe right to control tbe erection of tbe structure and was to be responsible for tbe cost of tbe work and tbe wages of tbe men employed. It is manifest tbat tbe defendant was responsible to all persons engaged on tbe job, and tbat Heidlinger merely acted as its agent in securing tbeir services. Under these circumstances it cannot be said tbat Heidlinger bad contracted witb defendant to •erect tbe mill according to bis own method and without being subject to tbe control of tbe defendant except as to tbe result of tbe work. Upon tbe evidence it must be held tbat tbe plaintiff was in defendant’s employ at tbe time of tbe accident. Erom tbe foregoing conclusion it follows tbat Span-bauer was in defendant’s employ when be was conducting the; operation of blasting tbe earth at tbe mill site.

We are persuaded that' tbe defendant exercised reasonable •care in selecting Spanbauer as one competent to do tbe blasting. Whether or not Spanbauer proved to be competent to perform this highly dangerous service does not determine this •question. Tbe inquiry is: Did tbe defendant act upon such information respecting Spanbauer’s skill and competency in this regard as that upon which ordinarily prudent men will act under tbe same or similar circumstances? If so, it ful*448filled its measure of duty to its other servants in the selection of employees. It is shown that Heidlinger apprised the defendant’s officer in charge of the construction that he had not-the knowledge and skill to set the loads of dynamite and explode them. Thereupon he was directed by defendant to obtain for this purpose a competent blaster from among the men engaged in this service in a neighboring quarry. Pursuant to this direction Heidlinger applied to the person operating the quarry, and was informed that Spanbauer was engaged at the quarry and understood the business. It is manifest that the officers of the defendant and Heidlinger knew that persons were engaged in blasting in the quarry, and understood from the representations of the person operating that-Spanbauer had performed this service and was skilled in it. Their conduct in this respect was that of reasonable and careful men and acquits them of the charge of negligence in this, respect.

It is insisted by respondent that, if the plaintiff was in defendant’s employ in performing the service at which he was injured, then defendant is not liable therefor, because it was caused by the negligence of Spanbauer, who was a fellow-servant of the plaintiff in the work of blasting. The trial court held this contention of the defendant to be sustained by the facts of the case under the ruling in *Wiskie v. Montello G. Co.*111 Wis. 443, 87 N. W. 461. In the *Wiskie Case*the plaintiff, while assisting the foreman of the quarry in conducting the blasting, was injured through the unexpected explosion of part of a powder blast which the foreman had negligently permitted to remain and near which he had set the plaintiff at work. The facts of the case show that Wiskie and the foreman had jointly placed the blast, that they worked together under the foreman’s direction at raising and blasting rocks, and that they had been so engaged for a long time before the accident. It was held upon these facts that Wiskie and the foreman were engaged in a common service-*449of blasting rocks wben Wiskie was injured. Erom an examination of tbe facts in tbat case it is manifest tbat Wiskie and tbe foreman were jointly performing tbe same task and were engaged in a common service; but we do not find a like state of facts in tbe instant case. Here tbe defendant bad employed tbe plaintiff to belp remove tbe earth for tbe foundation of tbe mill. Tbe defendant in tbe course of tbe prosecution of such work decided to employ a blaster to break tbe frozen ground so as to expedite tbe work. Spanbauer was engaged for this purpose and was employed at this special work for two days. Tbe work was conducted as follows: Plaintiff and tbe other workmen at tbe excavation drove boles with iron bars into tbe earth for setting dynamite charges in. Spanbauer then took charge of tbe work. He placed tbe dynamite charges in tbe boles, packed them with earth, connected them by wire with an electric battery, and discharged them by turning on tbe electric current. Neither tbe plaintiff nor tbe other workmen took part in setting and packing in tbe charges or in connecting them by wire with tbe battery or in discharging them. All of this was under tbe control of and was performed by Spanbauer in tbe capacity of blaster. Erom this it appears tbat tbe setting and exploding of tbe blast was exclusively intrusted to'the expert and tbat plaintiff took no part in performing this service. It is obvious from tbe dangerous character of this service tbat it was treated as separate and distinct from tbe service plaintiff and tbe other workmen were performing in excavating the earth for tbe foundation of tbe mill. In tbe *Wiskie Case*tbe plaintiff assisted tbe expert in performing tbe work of blasting. In tbe instant case tbe plaintiff did not assist or engage in tbe work of blasting, and herein tbe two cases are widely distinguished. In tbe former tbe plaintiff and expert were engaged in tbe common service of blasting. In tbe latter tbe plaintiff and tbe expert were engaged in separate and distinct services, which were different in nature and in tbe hazards and dan*450gers incident thereto. True, they both served a common master and occupied the same place while performing their respective duties, but the operation of blasting was wholly different, distinct, and independent of the employment of the excavator engaged in the construction of the mill. The risks and dangers of blasting are not ordinarily incident to the service plaintiff was performing. These features and conditions of the instant case clearly differentiate it from the *Wiskie Case.*Upon these considerations the ruling of the trial court that plaintiff and Spanbauer were fellow-servants cannot be approved. The case must be treated from the standpoint that plaintiff was the servant of the defendant and was not engaged in the operation of blasting with Spanbauer, who acted alone for the defendant in using and handling highly explosive and dangerous agencies for blasting the earth. *Cadden v. Am. S. B. Co.*88 Wis. 409, 60 N. W. 800.

Nor can the plaintiff be treated as one informed of the dangers which are incident to the want of a proper conduct of the blasting operation. The nature of plaintiff’s work and his relation to the blasting did not inform him of the unsafe condition of the place where he was directed to proceed with the work of excavating after Spanbauer had exploded the blast and had pronounced the place safe for continuing the work of excavating. While the plaintiff knew that an explosive was being used by Spanbauer to expedite the work, he was not informed of the particular danger to him from a failure to discharge part of the dynamite charges. He had no reason to apprehend that an undischarged load was hidden in the earth where he was put to work. He was in fact led to believe by the expert that the place was safe.

It does not appear that plaintiff was instructed or warned of the extraordinary hazards and dangers incident to the use of dynamite, and he cannot be held to have assumed the risks thereof as dangers ordinarily incident to his employment. It devolves on the master, who finds it necessary and expedient *451to use hazardous agencies in tbe conduct of bis business, to inform bis servants, not informed on tbe subject, of tbe extraordinary risks and dangers attending tbeir use, in order that they may avoid them by refusing to continue in tbe service, or may otherwise protect themselves against them. Tbe evidence in tbe case bearing on tbe question of defendant’s negligence was such as to present questions for solution by a jury, and it was error to direct a verdict for tbe defendant.

*By the Court.*— Judgment reversed, and tbe cause remanded to tbe trial court for a new trial.

Marshall, J.

(dissenting). In my opinion this case is clearly ruled in favor of respondent by *Wiskie v. Montello G. Co.*111 Wis. 443, 87 N. W. 461, and tbe principle there referred to exempting tbe master from tbe consequences to one servant from tbe negligence of bis fellow-servant. Tbe trial judge doubtless supposed, as well in my opinion be might, that there was no fair way of distinguishing tbe two cases or escaping tbe effect of tbe principle.

Tbe logic indulged in, by my brethren, has support in some jurisdictions, but was repudiated by this court at quite an early day, and such repudiation has been uniformly adhered to.

I will say, in passing, that I have not tbe slightest idea tbe court now intends to adopt tbe doctrine which its opinion, as it seems, will be regarded as promulgating. At some future time tbe apparent departure from tbe long-traveled road will be corrected.

This case goes upon tbe theory that employment in a general enterprise may be, or, to put it stronger, is necessarily, divided up into different tasks, services, or departments, according to character, grade, and degree of danger, and that, in tbe law of negligence, fellowship in one branch of a general employment does not extend to those employed in tbe other.

Now wide tbe doctrine stated is from tbe rule prevailing *452in. this state, which is so familiar that it hardly need be stated, must be apparent at once.

Neither grade of work, particularity of group, within a broad general class of employees in a particular proprietor’s business, nor degree of danger, nor rank of employment, is the test of fellowship between servants, in the law of negligence. The sole test is whether the persons concerned are employed in the same general enterprise to accomplish the same general purpose by the same master under the same general control, regardless of whether they are, at the particular time, engaged in the same branch of the work or not. *Toner v. C., M. & St. P. R. Co.*69 Wis. 188, 198, 31 N. W. 104, 33 N. W. 433.

A station agent employed in a widely different branch of the business of operating a railroad from a train crew, the latter from a track crew, and that one from the roundhouse crew, all being in the common employment of operating the railroad, the engineer on the locomotive and the most humble trainman, the trackman wielding his shovel, the station agent, the most common workman moving freight about the depot, are fellow-servants. *Toner v. C., M. & St. P. R. Co., supra; Cooper v. M. & P. du C. R. Co.*23 Wis. 668; *Howland v. M., L. S. & W. R. Co.*54 Wis. 226, 230, 11 N. W. 529; *Pease v. C. & N. W. R. Co.*61 Wis. 163, 20 N. W. 908; *Peschel v. C., M. & St. P. R. Co.*62 Wis. 338, 349, 21 N. W. 269; *Albrecht v. C. & N. W. R. Co.*108 Wis. 530, 84 N. W. 88, 53 L. R. A. 653; *MacCarthy v. Whitcomb,*110 Wis. 113, 85 N. W. 707. Those cases amply illustrate all I have said. All these are held fellow-servants: A shoveler in a gravel pit and a train conductor. *Naylor v. C. & N. W. R. Co.*53 Wis. 661, 11 N. W. 24. A snow shoveler and a member of a train crew. *Howland v. M., L. S. & W. R. Co., supra.*The foreman and men engaged under him, whom he has full power to direct. *Peschel v. C., M. & St. P. R. Co., supra.*The track-repair crew and the members of a crew on a passing train. *453*Toner v. C., M. & St. P. R. Co., supra.*The train crew on one train with tbe train crew on another. *MacOarthy v. Whitcomb, supra.*Tbe men wbo load coal on locomotive tenders and tbe track walker injured by coal dropping from tbe tender. *Schultz v. C. & N. W. R. Co.*67 Wis. 616, 31 N. W. 321.

Perhaps as striking an illustration as any case that can be cited is *Cooper v. M. & P. du C. R. Co., supra.*It has been many, many times approved. Tbe person injured, as said in *Heine v. C. & N. W. R. Co.*58 Wis. 525, 17 N. W. 420, was engaged in a branch of tbe service not in any way connected with that in which tbe negligent employee causing tbe injury was engaged. Tbe particular work of tbe one bad no connection whatever with tbe particular work of tbe other,, except tbe two services were in departments of tbe general business of operating tbe railroad.

It seems useless to pursue tbe matter further. Here, at tbe best for appellant, be was engaged in one branch and tbe blaster in another of tbe general business of a common employment of preparing tbe ground for tbe foundation of a mill. They came much nearer being engaged in tbe same particular work, if that was a legitimate test, than tbe injured and tbe injurer in any of tbe cases referred to.

Tbe idea that an industrial operation under an employer is subject to be divided into specific tasks or departments according to kind of work, whether of common or expert character, so as to make corresponding divisions as to fellowship, has no support in our jurisprudence.

Let it be conceded, for tbe purposes of tbe case, that tbe specific work of doing tbe blasting was' delegated wholly to Spanbauer, while the work of making tbe boles for him to place tbe dynamite in and of excavating after tbe blasts were discharged was delegated to others, including appellant. Concede if we may, as my brethren say, that tbe two kinds of work were widely different, one being of a common and tbe *454other of an expert character. Also concede, for now, that the particular service of one was distinct from that of the other and that they were different in nature and hazards and dangers. If those- features, under the rule prevailing here, suggest want of fellowship, I do not understand the rule.

True, say my brethren, “they [Spanbauer and appellant]' both served a common master and occupied the same place while performing their respective duties, but they were engaged in independent employments in the construction of the mill.” That is, as I understand it, they were engaged in different tasks of the general work of construction. That concession, within all our cases, instead of indicating want of fellowship indicates right the contrary, as I understand our decisions.

As the opinion goes: ‘Plaintiff was the servant of defendant and was not engaged in the operation of blasting with Spanbauer, who, . . . alone, was the blaster,’ thus suggesting, as before indicated, that a general employment is divisible into numerous special tasks as to fellowships. Where there is warrant for that suggestion I do not know.

I think the ruling of the learned trial court was right and the judgment should be affirmed.