(dissenting) — I dissent. I have no fault to find with the law as announced by the majority, but in my judgment it has not been applied to the facts in this case. The opinion says, in the course of the statement, that the signal was generally if not always given by Boyle. The statement, to be literally correct, should be a little more definite on this crucial question. The testimony on this point was furnished by the defendant. The acknowledged foreman and signalman, Mr. Bartell, testified as follows:
“Q. Boyle was a common laborer, was he? A. Boyle was a carpenter. Q. Working with those other men there? A. Yes, sir. Q. They worked all under your direction? A. Yes, sir. Q. Boyle did not hold any higher position than Mr. Frengen, did? A. Boyle was a man that I always depended upon to give me the signal— Q. From above? A. —as he had had experience in that business.”
This testimony was not disputed nor modified, and is one of the admitted facts in the case. Hence, it appears that Boyle always gave the signal and that the respondent had *212nothing to do with it. The case stands then, without any controversy as to the fact that there were two signalmen. The signal could not be given to the engineer from the roof where the respondent was at work, and it was necessary for some one there to make a signal to the foreman below, and he would communicate it to the engineer, and that “some one,” who was authorized to make the signal from above, and who did make it, was Boyle. Hence Boyle became a signalman. It matters not if he did have other duties to perform in conjunction with the respondent. This would probably be simply an economic arrangement, and this particular duty of making the signal devolved upon him with as much force as if he had had nothing to do but to make signals. Then, if the doctrine is true, which this court has uniformly announced in numberless decisions, and which is supported by almost universal authority, and which is in fact quoted approvingly by the majority from the case of Westerlund v. Rothschild, 53 Wash. 626, 102 Pac. 765, that a duty to signal, where a signal is necessary to protect a workman in his right to a safe place to work, is a duty imposed by law upon the master which cannot be delegated to others, whether employees of the master or not, so as to relieve the master from liability for their failure to properly perform their duty, how can the deduction be made that respondent and Boyle are fellow servants in a sense that would transfer responsibility for Boyle’s delinquencies from the master to the servant ?
It has been just as uniformly held, and is candidly acknowledged by the majority, that fellow workmen may be fellow servants with regard to some particular part of the employment, and that as to other parts of the employment the fellow workman may stand in the relation of vice principal to others, depending entirely upon what is being done at the time. This doctrine exactly meets the case in point. If, in handling these timbers, Boyle had negligently or awkwardly caused one of them to drop or slip or swing around *213and hurt the respondent, or had injured him in any way while in the performance of his duty as a colaborer, the negligence would doubtless have been the act of a fellow servant for which the master would not be responsible. But where it is conceded, as it must be here, that the negligence of Boyle was in no way connected with the j oint duties of him and the respondent, but was an independent duty with sole reference to maintaining a safe place to work, to hold that he was a fellow servant of the respondent conflicts with every cardinal principle that has been announced by this court on the subject of fellow servant; and the cases cited to sustain the rule announced show, in my judgment, an utter misconception of the principles involved in the respective cases and announced by the decisions.
The first case cited and quoted from, viz., Jock v. Columbia & Puget Sound R. Co., 53 Wash. 437, 102 Pac. 405, was where a common laborer was directing and assisting the plaintiff in unloading a car of lumber. The master had told the plaintiff to go with the man that he designated, and he would instruct him how to unload the car. In unloading the car, while both men were engaged in the labor of unloading it, a post or support broke and the plaintiff was injured, and it was held, as stated in the opinion, that in that particular case they were fellow servants. But it will be noticed that in that case they were both working in a common employment, and that the cause of the accident was simply an incident of the work. It was absolutely a joint occupation; the fellow workman had no particular power delegated to him, and one man had the same opportunity to notice and avoid danger as the other. In announcing that opinion, a quotation was made from Hammarberg v. St. Paul & Tacoma Lumber Co., 19 Wash. 537, 53 Pac. 727, where it was said, in reviewing this question:
“The doctrine was applied simply and humanely on the theory that, standing on a level with each other, both as to employment and authoi'ity, they had notice which the master *214necessarily could not have of. the dangers liable to result from the action of the workers; . . .”
But in the case at bar, while they were coworkers with relation to certain things, they were not cóworkers with relation to the duty of signaling, because that was a duty that was conferred especially upon Boyle; and it was not an incident to the work which Boyle and the respondent here were doing together, viz., handling these timbers, but it was a vital and special duty of Boyle over which the respondent had no authority or control whatever, and he had a right to rely upon the presumption that the master had furnished an agent to make these signals who would make them properly and in the interest of his safety. The cases seem to have nothing in common.
The next case cited and quoted from is Mercer v. Lloyd Transfer Co., 59 Wash. 560, 110 Pac. 389, where it was held that a teamster and his assistant were fellow servants when they were engaged in the common occupation of loading heavy iron plates on a truck, both being experienced men and having conferred together as to the proper manner of loading them; the court saying in that opinion:
“It appears that Peters, the driver, and respondent, as appellant’s employees, were jointly engaged in the task of loading plates; that they were each in such á situation as to afford them a controlling influence the one over the other, and that the only negligence, if any, was their joint act in improperly loading the plates.”
It was certainly not the joint act of Boyle and the respondent in not giving this signal, or in giving it without warning to the workmen; because, as we have seen, the respondent was not authorized to give the signal and had no duty whatever concerning it.
The next case, Desjardins v. St. Paul & Tacoma Lumber Co., 54 Wash. 278, 102 Pac. 1034, was where a millwright, acting as foreman, was assisting in the erection of a post which he was holding in place with his hands, and negligently *215let go, whereupon it fell and injured his helper. It was held that, as to such act in holding the post, he was a fellow servant, because that was a mere detail of the work for which the master was not responsible. There is no suggestion in this case of any act on the. part of the foreman outside of the work he was doing as a joint worker with the plaintiff. And without further special review of the cases, they are all of the same character.
It is true that, if the real master, the owner of a business or occupation or factory, is working with a laborer in the capacity of a common laborer, in the performance of that labor he is a fellow servant, and if he negligently acts he is not responsible as master. The corollary of that proposition is that, if one who is ordinarily a fellow servant with another, in the performance of a duty conferred upon him by the master which is not a joint work with the other laborer, negligently causes an injury to the laborer i the master is responsible; for, as before stated, it depends not upon the official character of the men who commit the negligent act, but upon the particular kind of work that they are doing when such negligence is committed. Boyle, then, being a signalman, and it being the duty of the master to furnish a signalman at the place where the signal was given — and that is not disputed' — when he failed to give a proper signal or signaled without notifying the workmen, was acting exclusively for the master in the carrying out of the master’s duty, and the master is responsible for his negligent acts.
The question of negligence on the part of the respondent in taking hold of the cable where he did, as suggested in the concurring opinion of Judge Ellis, is a question entirely of fact. There was no contention and no showing anywhere in the testimony that the taking hold of the cable and pulling it as the defendant testified that he did, although there was only about an eight inch space for him to catch hold of, was dangerous when the machinery was not moving; and the case was contested by the defendant simply on the ground that *216it did not instruct the respondent to take hold, of the cable as he did. The testimony of the respondent on that question was as follows:
“A. (Continuing) ■ — and then the timber was hanging, you know, you could1 not — we could not land it on any ways, and so the foreman told me to go and grab hold on that cable and pull it in so that we could land it down. Q. He told you that? A. He told me that. Q. Was there any other place to hold it or grab it? A. No other place to get hold of it. Q. And he told you to take it there? A. The foreman told me to take — grab hold of the cable and pull it in. Q. Grab hold of the cable and pull it in? A. Yes, and so I did. I went and grabbed hold of the cable like this (illustrating) and I was going to pull on it and at the time I was going to pull then the block came up and caught my fingers right here (indicating). . . . Q. How did that happen? What caused that? What caused that to do that? Why was it? Was there any signal to start up? A. There was no signal. I could not hear — was no signal given me to get out of there before it was — before the motor started.”
Again, he testified that he had not been furnished with any peavy, and that the foreman told him to grab hold of the cable and pull it in. He was very positive on this point, both in his direct and cross-examination. George Conrad, a witness for the plaintiff, testified as follows:
“Q. You didn’t hear the foreman tell him to grab hold of the cable and pull that in, did you? A. I did. Q. You heard that too? A. I heard that. . . . Q. And the foreman told this man to grab hold of that cable with his hand and pull it in, did he? A. He said, ‘Grab hold of the cable and pull it in.’ ”
And he testified that he was in plain view of it all, and heard it all. Two witnesses for the defense testified, one of them being near by and the other some distance off, that they did not hear the foreman tell the respondent to take hold of the cable. But the foreman Bartell testified positively as follows:
“Q. And state to the jury and court whether or not you ever instructed him, or whether you instructed him on this *217occasion, to catch hold of that cable and pull the timber in. A. No, sir. I certainly never told anybody to grab hold of that cable and pull it in.”
So that it will be seen that, on this question, the testimony was absolutely conflicting. In such cases, deduction is for the jury.
These being the only two controlling questions in the case, the first, the question of fellow servant, being determined in favor of the respondent, both by the admitted testimony and the uniform law on the subject; and the second, the question of contributory negligence, having been decided in respondent’s favor by a verdict of the jury, the judgment should be affirmed.