#### Wnek, by guardian *ad litem,*Respondent, vs. Superior Shipbuilding Company, Appellant.

*February 20*

March *12, 1912.*

*Master and servant: Injury: Unsafe place to worlc: Scaffolding: Duty of master: Negligence of fellow-servants.*

*1..*The duty of a master to furnish for his servants a reasonably safe place in which to work is an absolute duty which cannot be delegated.

2. In an action for injuries sustained by a member of a riveting crew in defendant’s shipyard, caused by the collapse of a scaffold on which he was working, evidence showing, among other things, that the scaffold was built by a separate crew working independently of the plaintiff, that material used therein was defective, and that the defect was discoverable by inspection before such material was placed in the scaffold, is *held*to show that defendant had not performed its duty to furnish a reasonably safe place to work and that the negligence was not that of fellow-servants.

Appeal from a judgment of tbe superior court of Douglas county: Chaeles Smith, Judge.

*Affirmed.*

This is an action to recover damages for personal injuries received by tbe plaintiff while employed by tbe defendant as helper to an operator of a dolley or riveting device.

On April 16, 1910* repairs were being made in defendant’s dry dock of its shipyards at Superior to tbe deck of a steel -freight boat. In the performance of his duties the plaintiff worked upon a structure in the hold of the boat composed of a scaffold covered with planks which formed a^> floor four or five feet below the deck upon which the repairs were being made. The scaffolding was composed of a steel beam fastened to the side of the boat, a twelve-foot plank parallel thereto at a distance of about eight feet, and three cross-planks nine feet long which spanned the area between the twelve-foot plank and the steel beam. The floor on which the plaintiff and the riveter worked was composed of three or *619four planks laid loosely upon tbe scaffold. These planks were moved about by the riveter as necessity required dpring the progress of the work. Sometimes additional planks were placed under the dolley to raise it sufficiently to be within reach of the place where the riveting was being done.

The hatches of the boat which, was being repaired ran across the deck and were twelve feet from center to center. Crossing the hold between the hatches were steel arches. Running along the sides of the boat four or five feet below the deck were steel beams about twelve inches wide. The twelve-foot plank was placed with the ends resting on two of the arches. The nine-foot 'planks were placed so that there was one at each end and one at the center of the plank resting on the arches. This composed the scaffold. This scaffold was built prior to the riveters starting work and by a separate crew of men. The planks required for the floor were also placed upon the scaffold by this crew. If the riveter required more floor planks, men were at hand to get them for him; if he needed only one more plank he usually got it himself. The ends of the hatches were about sis feet from the sides of the boat so that the platform extended three feet under the open hatch.

The rivets were heated to a red heat upon the deck and-handed with a pair of tongs to the plaintiff; who stood in the hatchway upon the floor on the scaffold. He either placed it in the proper hole or handed it to the “holder-on,” who placed it. When the-, rivet was in place the holder-on applied the compressed air and pressed the dog of the dolley up against the rivet to hold it in place while it was being riveted from the other side of the deck. If the rivet was placed through the top of the deck the riveting was done by the dolley from below.

The plaintiff had been working for the defendant for eight or nine days when he was injured. Work at riveting on the boat in the dry dock had been first started that morning. At *620about a quarter to 12 o’clock tbe plaintiff bad received a rivet and bad banded it to tbe bolder-on.- Tbe bolder-on bad placed it in position and applied tbe compressed air in tbe dolley, tbe dog of tbe dolley bad been jammed up against tbe rivet, and tbe riveting bad been started from above tbe deck, when tbe scaffolding gave way and tbe bolder-on and tbe plaintiff fell into tbe bottom of tbe bold, a distance of eighteen or twenty feet. Tbe bolder-on was killed and tbe plaintiff suffered tbe injuries for which he seeks to recover. One of tbe nine-foot planks of tbe scaffold bad broken at a knot in tbe plank.

Tbe jury returned a verdict finding that tbe defendant bad furnished suitable material for constructing a safe scaffold for tbe men working thereon, that tbe material of which the scaffold was constructed was not fit and proper, and that tbe plaintiff exercised ordinary care for bis own safety. Tbe damages were assessed by tbe jury at $800; $400 being assessed to cover tbe future. This is an appeal from a judgment on tbe verdict.

For tbe appellant there was a brief by *Hanitch & Hartley,*and oral argument by *C. J. Hartley.*

For tbe respondent there was a brief by *Charles Line,*attorney, and *Frank F. Jenswold,*of counsel, and oral argument by *Mr. Line.*

Siebecker, J.

Tbe foregoing statement of facts shows that tbe plaintiff was a member of tbe riveting crew engaged in making repairs on tbe boat and that tbe defendant furnished a scaffold in tbe bold of tbe boat on which be was required to perform bis duties. It appears that tbe scaffold was built by employees of tbe defendant who were not a part of tbe riveting crew to which plaintiff belonged, and that tbe only duty plaintiff bad respecting bis working place was tbe placing of such additional planks on tbe scaffold as might be needed for tbe floor and for erecting a suitable stand on tbe *621scaffold for the riveting machine. Erom this it is manifest that the erection of the scaffold was part of the defendant’s duty in preparing a place for plaintiff to work. See *Parker v. Fairbanks-Morse Mfg. Co.*130 Wis. 525, 110 N. W. 409; *Cadden v. American S. B. Co.*88 Wis. 409, 60 N. W. 800. Under these circumstances the measure of defendant’s duty was as declared in *Howard v. Beldenville L. Co.*129 Wis. 98, 108 N. W. 48, namely, to furnish plaintiff a reasonably safe place in which to work. Such duty was an absolute one which could not be'delegated by the master. We are satisfied from the evidence that the jury were justified in finding that the material used by the scaffold builders was not such as made the scaffold a reasonably safe one. The evidence shows that one of the planks was imperfect and that this defect was discoverable by inspection of it before it was placed in the scaffold. This evidence establishes that the master had not performed its duty of furnishing plaintiff a safe place to work and that the negligent construction of the scaffold was due to the carelessness of the scaffold builders, who worked independently of the plaintiff and were wholly separated from his duties.

It is suggested that the plaintiff’s failure to place additional planks on the scaffold to support the riveting machine was a contributing cause to produce his injuries. It is manifest from the facts shown that the use of additional planks for this purpose would not in any way have made the scaffold more safe, and this, therefore, can have no bearing on defendant’s liability for its want of care in furnishing plaintiff a safe scaffold to work upon.

*By the Court.*— Judgment affirmed.