This case was heard at the last term of this court and an opinion rendered by which the-judgment was reversed without remanding. Motion for rehearing was sustained aud the case reargued at this term.
Action for personal injuries received by plaintiff while in the employ of defendant, judgment for plaintiff for .five thousand dollars, and defendant has appealed.. Defendant is a corporation operating a stave factory at Pascóla in Pemiscot county, and for the purpose-of transporting logs from the timber to its factory had built a private railroad some four or five miles *238long over which logs were hauled upon flat cars made from old stock cars by removing all the frame work above the floor of the cars and attaching sockets to the sides of the cars in which wood stakes were inserted to hold the logs in place on the cars. Logs were loaded upon these cars in the . timber by laborers in the employ of defendant, who were assisted in that work by the engineer and fireman in charge of the engine that pulled the cars back and forth from the factory to- the timber. The logs were sixteen to eighteen feet long, and were loaded in two sections lengthwise on the car and two stakes were placed ■on each side of each section to hold the logs in place, making-eight stakes to the car and these stakes were tied together- with wires extending across the car. When one or more cars of logs were brought to the mill some of the men who worked at the mill would unload the logs, then go back to their ordinary work. To unload the logs the stakes holding them were cut on one side of the car and the logs rolled off on skids. On June 25, 1907, the foreman at the mill or factory directed Mr. Mockaby, his assistant, to unload a car of logs and he, with his plaintiff and two other men, proceeded to that work. The stakes were cut on one side and one tier or bulk of logs had been unloaded and part of the other tier when, in the effort to roll off a log a little longer than its fellows and lying on top and between two other logs, two men were at one ■end of it, one man at the other end, and plaintiff with a ■canthook stepped up on top of the logs and took hold of the log with the canthook, and as the men lifted in the attempt to roll this log off a stake on the opposite side of the ear gave away and the logs rolled off the car on the wrong side carrying plaintiff with them and severely injuring his left leg,' resulting in its amputation.
Plaintiff’s action is grounded in negligence. The allegation of negligence is covered by the following *239which we quote from his petition. “Plaintiff states that said car belonged to the defendant and was old, rotten and womout, and provided with but one pocket or socket in which to place stakes or standards on that side of said car where said logs fell off, and had but one stake or standard on that side of said car; that one stake or standard on said side of said car, on account of the great weight and pressure of the carload of logs against it, was totally insufficient to hold said load of logs; that said stake or standard was old, worm-eaten and defective; all of which said facts were then and there well known to the ■ defendant, or by the exercise of ordinary care could have been known to defendant, but none of which facts were known to the plaintiff; and that by reason of all of said defects, insufficient stakes and womout condition, said stakes or standards broke as aforesaid, causing the falling of the logs and the plaintiff and his injuries as aforesaid; and that said falling of the plaintiff and his injuries as aforesaid were directly caused by the carelessness and negligence of the defendant in failing and neglecting to provide a reasonably safe place at, around and about which for plaintiff to work, and in negligently and carelessly failing to provide a ■ reasonably safe and sufficient car, with sufficient and safe appliances thereto, and sufficient and safe pockets and standards or stakes therein to well and safely hold the load of logs on said car.”
The answer was a general denial, plea of contributory negligence and that the injury was caused by the negiigence of a fellow-servant and that plaintiff did not properly care for the limb after receiving the injury.
Plaintiff’s testimony tended to show that this oar had but one stake on the side of the car where these logs fell and that this stake was partly rotten, and, therefore, weak and defective and that when the men. including plaintiff, began to pry and lift the log they *240were attempting to roll off, the defective stake gave way and caused the logs to roll off and injure plaintiff. Defendant’s testimony tended to show that there were two stakes.
Appellant assigns as error the failure of the court to sustain a demurrer to the testimony and contends that plaintiff’s testimony shows first, that he was guilty of contributory negligence in getting up on top' of the logs with a eanthook to roll a log off. We do not agree with this contention. Plaintiff testified that the other men occupied the space at the end of the log and there was no room for him to help with the eanthook unless he got on top and that he took hold of the log near the center to keep it from twisting. This explanation of his action is entirely reasonable, and instead of showing negligence shows that his conduct was right and proper.
Second, that the cause of the injury was the breaking of a defective stake and defendant was not responsible because the party who placed the defective stake in the socket of the car was a fellow-servant of plaintiff.
If the party who selected and placed this stake was a fellow-servant of plaintiff then there can be no question that defendant is not responsible for his negligence unless the stake be regarded as a part of plaintiff’s place to work and the master should, for that reason, he held responsible; for the employer is not ordinarily liable for injuries to an employee resulting from the negligence of fellow-servant except in cases in which the rule has been eliminated by statute.
'Were plaintiff and the party who placed the defective stake in the car fellow-servants? There is probably no question that has given the courts more trouble than this one of determining when and under what circumstances one employee shall be regarded as a fellow-servant of another employee of the same *241master. Some effort has been made to lay down rules by which to determine this question. Thus in Moore v. Railroad 85 Alo. 504, it was said “All 'are fellow-servants who are engaged in the prosecution of the same .common work, leaving no dependence upon or relation to each other except as co-laborers without rank under the direction and management of the master himself, or of some servant placed by the master over them.” In Relyea v. The Railroad, 112 Mo. 86, 20 S. W. 480, it is said, “They are co-servants who are so related and associated in their work that they can observe and have an influence over each other’s conduct and report delinquencies to a common correcting power.” But neither of these tests can be said to be infallible and the trend of the later decisions has been to allow each case to be determined upon Its own facts, and this seems to be the only safe course to pursue for if we were to undertake to analyze the decided cases and deduce therefrom general rules by which each case could be determined we should find ourselves engaged in an impossible task. We should not proceed very far with such an undertaking until it would be apparent that the courts are in irreconcilable conflict. The Supreme Court of this state to which we must look as the final arbiter in all cases is hopelessly in conflict with itself on this question as has been clearly pointed out by Judge Marshall in Grattis v. Railroad, 153 Mo. 380, 55 S. W. 108.
In this case the evidence shows tiie business of this defendant was under the direction and supervision of one superintendent and one foreman and each, when acting, had control of all the employees. Its business was to cut logs in the forest, haul them to the factory and make them into staves and headers. The handling of the logs was done by loading them on cars in the forest, hauling them to the factory and unloading them. They were loaded by the engineer and fireman of the *242engine that hauled the ears, and some other men in the forest; they were unloaded by any men who could at the time be spared from their ’ work in the factory, and all these men were engaged in the common employment of getting logs from the forest to the mill, all working for the same party and under the immediate direction of the same foreman.
The plaintiff testified as to his own duties as follows : “My duties were to run the drag saw under the shed when it was running, and to do whatever else I was told to do by the foreman.” Prom this it appears that plaintiff was liable to be assigned to assist in any part of the entire work. Had the foreman so directed, it would have been the.plain tiff’s duty to have gone to the forest and assisted in loading logs the same as it was his duty to assist in unloading logs after they were bimight to the mill. We-are of the opinion that under all the testimony, including the testimony of plaintiff as to his employment, and duties, that he and the parties who loaded the logs were fellow-servants.
Plaintiff contends that should he be held as a fellow-servant of the party responsible for the defective stake yet this will not bar recovery for the reason that it was the duty of the master to use ordinary care to furnish plaintiff a reasonably safe place to work, and that this duty cannot be delegated to another and insists that the stake was a part of the place where, or the appliances with which, plaintiff was required to work and that, therefore, the fellow-servant rule does not apply.
It is the duty of the master to use ordinary care to furnish the servant a reasonably safe place in which to work, and this duty cannot be delegated. [Parker v. Railroad, 109 Mo. 362, 19 S. W. 1119; Herdler v. Buck Stove & Range Co., 136 Mo. 3, 37 S. W. 115; Combs v. Construction Co., 205 Mo. 367, 104 S. W. 77.]
*243While the master is held to the use of ordinary care to furnish his servant a reasonably safe place to work y.et when he has done this he has discharged his whole duty, and in doing this he may trust the servant himself, or a fellow-servant, to perform the ordinary and simple duties incident to the servant’s employment and resting upon the servant’s knowledge and skill. Hence, it has been uniformly held by our courts and other courts of high authority that if in the performance of the work it shall be necessary for the servant himself or a fellow-servant to prepare a place in which to perform the work, and the master shall use proper care to furnish proper material and competent fellow-workmen and a fellow-servant shall select badmaterialwhengood material is also available and by reason of that act a fellow-servant is injured the master is not liable. [Herbert v. Wiggins Ferry Co., 107 Mo. App. 287, 80 S. W. 978; Steffenson v. Roehr Co., 136 Mo. App. 225, 116 S. W. 451; Bowen v. Railroad, 95 Mo. 277, 8 S. W. 230; Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934; Kelley v. Norcross, 121 Mass. 508; Calton v. Richards, 123 Mass. 488; Hefferen v. Northern Pacific Railroad (Minn.), 48 N. W. 1; Leishman v. Union Iron Works (Cal.), 83 Pac. 30; Callan v. Bull (Cal.), 45 Pac. 1016; Ross v. Walker (Pa.), 21 Atl. 157; Prescott v. Ball Engine Co. (Pa.), 35 Atl. 224; Frazer v. Red River Lumber Co. (Minn.), 44 N. W. 878.]
In this ease the car used in transporting logs was furnished by the master to the servants without any stakes, and while stakes were necessary they were to be cut and placed in the sockets bv the servants themselves and the use to which each stake was put was only a temporary use, the stakes being changed, in part at least, with every load. Under these facts and the rule above cited if we regard the defective stake as a part of plaintiff’s place to work yet the simple duty *244of selecting and cutting a stake from a tree in the forest and fitting it in the socket of the car, as was necessary with each load of hogs, was a simple duty incident to the servant’s employment and could well be entrusted to the servants themselves without supervision from the master as was done in this case. There is no intimation that there were not plenty 6f sound trees in the forest from which to select stakes and as the stake was selected and prepared by a fellow-servant of plaintiff defendant cannot be held responsible for its condition.
Error is assigned in giving and refusing instructions. The first instruction given on the part of plaintiff tells the jury that it was the duty of the defendant to furnish plaintiff a reasonably safe place to work, etc. This was erroneous as it placed upon defendant the absolute duty to furnish plaintiff a reasonably safe place to work whereas the law only requires that the defendant use ordinary care to furnish a reasonably safe place.
Respondent contends that even if the condition of the stake be chargeable to a fellow-servant and defendant released from liability therefor, yet there is sufficient testimony to permit him to go to the jury on the question of insufficient sockets on the car. When this case was first decided we were of the opinion that this position was not well taken, and so, at that time, reversed the cause without remanding, but on consideration of the motion for rehearing we concluded that possibly we were in error on that question, and now after a further examination of the testimony we have concluded that there is testimony enough to indicate that the plaintiff may have a cause of action independent of the rotten condition of the stake, and shall, therefore, remand the cause for a new trial.
Judgment will be reversed and cause remanded1.
Nixon, P. J., dissents; Gray, J., concurs.