CORN, J.
Plaintiff in error brought suit against the defendant in error in the district court of the First judicial district, to recover $25,000 damages for personal injuries re-' ceived by reason of the negligence of the defendant, plaintiff being in defendant’s employ at the time the injuries were received. The evidence tends to show that Harry Stubbs, who is described as a “gang boss,” on the day the injuries were received took the plaintiff and found other employés of defendant to lower an engine. The engine, having been run into the shop for repairs, had been hoisted above the track, and was resting up-' on heavy timbers, the timbers resting upon the rails and above a pit dug under the track, two or three feet deep. All the timbers had been taken from under the engine but one, and Stubbs had previously ordered two of the men away. Plaintiff by order of Stubbs was on the right-hand side of the engine, and the [249] two remaining employes were on the other side. While the last timber was being removed Stubbs ordered one of the two remaining employés away, leaving but one, John Estes, holding the timber on the left-hand side. Immediately afterwards the end of the timber held by Estes dropped into the pit,. causing the end held by plaintiff to fly up and strike him under the chin, forcing his head violently against the driving rod and inflicting upon him a serious and permanent injury. A special verdict was rendered in the case, and the foregoing statement of the facts, while incomplete when taken in connection with the special verdict, will be sufficient for the decision of the case. The verdict of the jury was as follows: “We, the jury in the above-entitled cause, do upon our oaths say as to the first cause of action as follows: (1) That the plaintiff, John McBride, was injured at the shops of the defendant, in Cheyenne, on the 27th of November, 1883, and that the injuries there and then received were serious and oermanent. (2) ThatoneHarry Stubbs was at the time above mentioned a * gang boss ’ in the employ of the defendant, and as such ‘ gang boss ’ had immediate control of the men working in the shops of the defendant; he himself being under the general orders of the master mechanic. (3) That said Harry Stubbs had charge of the men engaged in lowering the engine and removing the timbers from under said engine on the day of the accident. (4) That one James Butler, foreman in the employ of the defendant, was present at the said shops on the day of the accident. That the duty of a foreman of the shops was to superintend the work in said shops under general directions of the master mechanic. (5) That one R. McDou-gal, master mechanic in the employ of the defendant, was not present at the shops at the time of the accident. (6) That three men were generally employed to remove the timbers referred to, although two men, — one of them being in the pit under the engine,— could do the work safely. (7) That on the day of the accident, and at the time of the removal of the last timber from under said engine, three were employed in said removal; the plaintiff on the right-hand side of the engine, and Louis Jacobson and John Estes or ‘ Monohan ’ on the left-hand side. (8) That in consequence of an order given by said Harry Stubbs the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also And Louis Jacobson negligent. (9) That the plaintiff was performing his duties with ordinary caution. (10) That the said timber was between seven and eight feet'long, weighed about 180 pounds. That the end of said timber farthest from the plaintiff fell into the pit under said engine, causing the other end to fly up and to cause the injuries to the plaintiff. (11) That if on the facts the finding should be for the plaintiff, we find for the plaintiff, and assess his damages at the sum of twenty-five thousand dollars, ($25,000.) If on the facts the finding should be for the defendant, we find for the defendant.. We find for the defendant on the second cause of action.” No error is assigned on the findingof the jury or the judgment of the court below upon the second cause of action. On the 2d day of July, 1886, the plaintiff moved for judgment in his favor upon the verdict. Subsequently, on the 17th day of July, 1886, the plaintiff entered his motion to vacate the verdict, and for a new trial. July 19th the court overruled both motions. On the same day the plaintiff again moved a new trial, assigning, among other grounds, that the court erred in rendering j udgment for the defendant upon the verdict.
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CORN, J.
Plaintiff in error brought suit against the defendant in error in the district court of the First judicial district, to recover $25,000 damages for personal injuries re-' ceived by reason of the negligence of the defendant, plaintiff being in defendant’s employ at the time the injuries were received. The evidence tends to show that Harry Stubbs, who is described as a “gang boss,” on the day the injuries were received took the plaintiff and found other employés of defendant to lower an engine. The engine, having been run into the shop for repairs, had been hoisted above the track, and was resting up-' on heavy timbers, the timbers resting upon the rails and above a pit dug under the track, two or three feet deep. All the timbers had been taken from under the engine but one, and Stubbs had previously ordered two of the men away. Plaintiff by order of Stubbs was on the right-hand side of the engine, and the [249] two remaining employes were on the other side. While the last timber was being removed Stubbs ordered one of the two remaining employés away, leaving but one, John Estes, holding the timber on the left-hand side. Immediately afterwards the end of the timber held by Estes dropped into the pit,. causing the end held by plaintiff to fly up and strike him under the chin, forcing his head violently against the driving rod and inflicting upon him a serious and permanent injury. A special verdict was rendered in the case, and the foregoing statement of the facts, while incomplete when taken in connection with the special verdict, will be sufficient for the decision of the case. The verdict of the jury was as follows: “We, the jury in the above-entitled cause, do upon our oaths say as to the first cause of action as follows: (1) That the plaintiff, John McBride, was injured at the shops of the defendant, in Cheyenne, on the 27th of November, 1883, and that the injuries there and then received were serious and oermanent. (2) ThatoneHarry Stubbs was at the time above mentioned a * gang boss ’ in the employ of the defendant, and as such ‘ gang boss ’ had immediate control of the men working in the shops of the defendant; he himself being under the general orders of the master mechanic. (3) That said Harry Stubbs had charge of the men engaged in lowering the engine and removing the timbers from under said engine on the day of the accident. (4) That one James Butler, foreman in the employ of the defendant, was present at the said shops on the day of the accident. That the duty of a foreman of the shops was to superintend the work in said shops under general directions of the master mechanic. (5) That one R. McDou-gal, master mechanic in the employ of the defendant, was not present at the shops at the time of the accident. (6) That three men were generally employed to remove the timbers referred to, although two men, — one of them being in the pit under the engine,— could do the work safely. (7) That on the day of the accident, and at the time of the removal of the last timber from under said engine, three were employed in said removal; the plaintiff on the right-hand side of the engine, and Louis Jacobson and John Estes or ‘ Monohan ’ on the left-hand side. (8) That in consequence of an order given by said Harry Stubbs the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also And Louis Jacobson negligent. (9) That the plaintiff was performing his duties with ordinary caution. (10) That the said timber was between seven and eight feet'long, weighed about 180 pounds. That the end of said timber farthest from the plaintiff fell into the pit under said engine, causing the other end to fly up and to cause the injuries to the plaintiff. (11) That if on the facts the finding should be for the plaintiff, we find for the plaintiff, and assess his damages at the sum of twenty-five thousand dollars, ($25,000.) If on the facts the finding should be for the defendant, we find for the defendant.. We find for the defendant on the second cause of action.” No error is assigned on the findingof the jury or the judgment of the court below upon the second cause of action. On the 2d day of July, 1886, the plaintiff moved for judgment in his favor upon the verdict. Subsequently, on the 17th day of July, 1886, the plaintiff entered his motion to vacate the verdict, and for a new trial. July 19th the court overruled both motions. On the same day the plaintiff again moved a new trial, assigning, among other grounds, that the court erred in rendering j udgment for the defendant upon the verdict.
The questions we are called upon to decide are whether the court erred in refusing to grant a new trial upon the motion of plaintiff, and whether the court erred in refusing to render judgment in favor of plaintiff and rendering judgment in favor of defendant upon the special verdict. If the plaintiff is entitled to judgment upon the findings of the jury it is upon the principle that Harry Stubbs was not, in contemplation of law, a fellow-servant of the plaintiff, but was a vice-principal standing in the place of the defendant, by reason of being placed by the defendant in control of a separate matter or department; or that, not being in control of a separate department, he yet was the representative of the common employer, by being placed in charge of the performance of duties upon which depended the safety of the men, and which the employer could not shift by dele[251] gating them to a subordinate. Under the facts as found by the jury it is clear that the defendant cannot be held liable for the negligence of Stubbs as a vice-principal in exclusive control of a department. The finding makes it evident that the control of the shops was in the master mechanic, under whose general orders Stubbs had immediate control of the men; that while the master mechanic was not present on the day of the accident, James Butler, the foreman, was present and his duty was to superintend the work in the shops under general directions of the master mechanic. None of the authorities, we believe, go to the length of holding the master liable for the negligence of an employé as vice-principal in control of a department, when there is in the same department, and present at the time of the accident, a superior under whose orders and control such em-ployé performs his duties. There is, however, a class of cases where the employé is the representative of the master, though not in control of a separate department; and where the master is liable for his negligence, not upon any ground of superior rank or grade in the service, but from the character of the service which he is designated to perform. “One of the exceptions to the general rule of the common law that the master is not liable to one employé for the negligence of a co-employé in the same service, arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master.” Railroad Co. v. Fox, 31 Kan. 597, 3 Pac. Rep. 320. Such proper diligence imposes upon the master such duties as to furnish to the men a reasonably safe place in which to work, to furnish them proper and safe machinery and materials with which to work, to exercise reasonable care and diligence in making sufficient regulations for the safe running of trains, so as to avoid injury from collisions, etc., to furnish sufficiently skillful co-employés, and in sufficient number for the safe performance of any particular piece of work in which an employé is called upon to take part, etc.
This brings us to a consideration of the facts as found in the special verdict. The eighth finding recites: " That in consequence of an order given by said Harry Stubbs, the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also find Louis Jacobson negligent. ” This is the only finding which imputes negligence to any one connected with the work in hand; and we think it clear, if the plaintiff can recover at all, it must be upon the ground that Stubbs, exercising the duties of the master in this regard, by his order left an insufficient number of men to do the work safely, and thereby the accident occurred. It cannot be maintained that by the order taking Jacobson away from the work some surprise or confusion among the remaining employés was occasioned, and that the accident thereby occurred, although sufficient force remained to do the work if properly applied. If the finding means that, then the plaintiff cannot recover, for in directing and assisting in the work merely Stubbs is a fellow-servant, and not the representative of the master. Moreover, the jury in terms find that in consequence of Jacobson’s failure to assist the accident occurred. But by the sixth clause of the verdict the jury find “that three men were generally employed to remove the timbers referred to, although two men — one of them being in the pit under the engine— could do the work.” The two findings are inconsistent with each other. The jury finds two men sufficient to do the work safely, and it clearly appears from the verdict that two men — the plaintiff and John Estes — were left to do the work, and yet they find that the accident occurred by reason of the failure of a third man to assist. It may be suggested that in order for two men to do the work safely one of them must have been in the pit under the engine. It may be that this is a legitimate inference from the language of the sixth finding. But, upon the other hand, the jury do not find that one of the men was not in the pit, unless it be conjectured from the language used in the seventh finding. And in any event it would only illustrate the negligence or care with which the work was performed; and in this respect Stubbs does not represent the master, but stands in the attitude of a fellow-servant only.
[253] Again, it may be urged upon the other hand that if, as this court believes, there is nothing in the verdict indicating any basis for a recovery by plaintiff except the furnishing of an insufficient number of men for the work, then the finding of the jury that two men were sufficient, and that two men were supplied, would warrant a judgment for the defendant, notwithstanding the further finding that the accident occurred in consequence of a third man being ordered away from the work, and failing to assist. We do not think so. It is true that special findings of fact will control a general finding. But here are inconsistent clauses of the verdict, each being a finding of fact. To strike out one and give effect to the other would be to make a new verdict, which the court has no power to do. Neither are we at liberty to go behind the findings, and resort to the evidence to sustain the verdict, for the effect would be the same. Where the special findings are materially inconsistent, the judgment must be reversed, and a new trial granted. Haas v. Railroad Co., 41 Wis.44; Kearney v. Railroad Co., 47 Wis. 144, 2 N. W. Rep. 82; Burns v. Rolling-Mill Co., 60 Wis. 541, 19 N. W. Rep. 380; Hill v. Covell, 1 N. Y. 522; Manning v. Monaghan, 23 N. Y. 539; Walsh v. Bank, 10 Civil Proc. R. 32. As a new trial will be ordered, we intimate no opinion upon the question whether the plaintiff would, in any view of the evidence as presented in this record, be entitled to recover. Judgment reversed, and new trial ordered.