dissenting.
In my judgment the law controlling the decision should be announced as follows: It is the nondelegable duty of the master to exercise reasonable care to provide a reasonably safe place to work and to furnish reasonably safe and suitable appliances, and if he undertakes to perform that duty through another he acts at his own risk, and this rule may he applied where the master delegates to an employee the duty of holding a ladder when that act is essential to the safety of another employee required to work thereon as a part of a permanent plan of operation.
The action is one to recover damages in the sum of $10,-000 for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant, December 21, 1918. Defendant at the time was installing an ice machine. Plaintiff and other employees, by means of blocks and chains; were raising pipes 20 feet above The floor in the engine room of defendant’s plant. The chains could not be reached from the ground and were operated by plaintiff and others from ladders. Six feet or more above the floor, plaintiff, in performing his duties, stood on a 14-foot slanting ladder with the lower end on a slippery cement floor and the upper end against a cylindrical iron column. This was a safe place to work when the ladder was held in place, but otherwise it was unsafe. Plaintiff, who had been transferred from another department, had no part in selecting the ladder dr in placing it in the position indicated. It was the duty of Louis Peitzel, another employee, to hold the ladder, and, solely through his negligence in failing to do-so, it slipped, turned, and threw plaintiff on the concrete floor. These facts are pleaded in the petition. In the ansAver it is alleged that the injury to plaintiff was caused by his own negligence, that he had assumed the risk incident to the use of the ladder, and that Peitzel was a fellow servant. Prom the judgment on a verdict in favor of plaintiff for $2,500, defendant has appealed.
Defendant challenges as erroneous an instruction containing the following language:
*501‘‘As before stated, it was the duty of the defendant to exercise ordinary care to furnish a reasonably safe working place for plaintiff in which to work, and reasonably, safe instruments and appliances with which to do his work. * * * You are therefore instructed that, should you find from a preponderance of the evidence that in the exercise of ordinary care, in order to furnish a reasonably safe working place in this instance and reasonably safe instruments or appliances with which plaintiff was required to perform his work, it was necessary to have some one hold the ladder in question while plaintiff was mounted thereon, and should you further find from the evidence that Louis Peitzel was the person delegated to perform said duty of holding said ladder in position, * * * and should you further find from a preponderance of the evidence that said Louis Peitzel was negligent in the performance of said duty, * * * then you are instructed that such negligence of Louis Peitzel would be the negligence of the defendant herein.”
. In regard to this instruction plaintiff seems to take the position that his injury resulted from the failure of Peitzel to perform for his employer the nondelegable duty to provide a reasonably safe place to work, the only negligence in that respect being the failure to hold the ladder. On the other hand, it is argued that Peitzel was a fellow servant, for whose negligence defendant is in nowise answerable. On appeal it is conceded: “(1) That the defendant placed Peitzel at the foot of the ladder with instructions to hold it steady when the plaintiff was upon it. (2) That Peitzel’s sole duty.was to hold the ladder for the plaintiff while he was on it. (3) That the ladder could not fall while Peitzel held it. (4) That Peitzel was, as far as his rank goes, a fellow servant of the plaintiff.”
The evidence supports a finding that Peitzel neglected to hold the ladder while plaintiff, free from negligence on his part, was on it in the performance of his duties. In that position no degree of care on the part of plaintiff *502would have made the place safe without some one to hold the ladder. Plaintiff was not required by his employment to make the ladder secure for his own protection. Plaintiff, who had been transferred from another department, had no part in selecting the ladder or in placing it in the position indicated. Its use in the manner indicated was not a temporary makeshift. It was intended to be thus used throughout the operations connected with the raising of pipes in the engine room. The unperformed duty was .the exercising of reasonable care to provide a reasonably safe place to work. This was the obligation of the master. The law requires him to perform that duty. If he undertakes to perform it through another he acts in that respect at his own risk. The duty cannot be shifted by the mere employment of animate means. In holding the ladder, a nondelegable duty under the facts of this case, Peitzel acted for his master, though in other respects he and plaintiff may have been fellow servants.
Defendant argues, however, that it had performed its legal duty when it provided a safe-ladder and selected a competent servant to hold it, and contends: “Where a master instructs a servant to work upon a ladder, and instructs a fellow servant to hold that ladder, and that fellow servant is competent, and the ladder is safe and sound and sufficient for the purpose for which it is employed, and the servant is in a ‘safe place’ so long as the fellow servant at the foot of the ladder performs his duty, is the master responsible for the consequences of the negligence of such fellow servant in releasing his hold upon the ladder, permitting it to slip, and causing the plaintiff to fall, on. the theory that the fellow servant at the foot of the ladder is performing a nondelegable duty inasmuch as he is maintaining a ‘safe place?’ ” .
The argument is formidable, but not conclusive. It was defendant’s duty to exercise reasonable care to provide a reasonably safe place to work and to furnish reasonably safe and suitable appliances. Parker v. Omaha Packing Co., 85 Neb. 515; Johnson v. Model Steam Laundry Co., 88 *503Neb. 12; O’Dell v. Stewart & Co., 96 Neb. 147; Union P. R. Co. v. Broderick, 30 Neb. 735. Tbe duty was a continuing one. Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249. The duty was nondelegable, and, if the fellow servant to whom it was delegated was negligent, defendant may be liable. Mitchell v. Omaha Packing Co., 92 Neb. 496. It is not material whether the injury is considered as a result of a breach of the duty to provide reasonably safe appliances or of the duty to provide a reasonably safe place to work. 3 Labatt, Master and Servant (2d ed.) p. 2392; 4 Labatt, Master and Servant (2d ed.) p. 4465. Defendant’s argument is based on the premise that the ladder was a suitable, safe and proper appliance for the purpose for which defendant had directed it to be used. The petition alleged, and the-proof justifies a finding, that the ladder was not in itself a suitable, safe and proper appliance, and that it was unsafe for the purpose for which it was being used unless it was held by another employee — an unperformed duty of defendant. In holding the ladder for the purpose of providing a reasonably safe place to work Peitzel was performing a nondelegable duty of his employer. His negligence was therefore attributable to defendant. The rule is: A master using a defective appliance cannot escape liability for injury to a servant therefrom by instructing or making it the duty of another servant to use it in a manner which will prevent the defect from causing injury, since the duty to furnish reasonably safe appliances is nondelegable. Czapinski v. Thomas Furnace Co., 158 Wis. 635.
This doctrine seems to be founded on reason and justice; It is in harmony with the trend of modern legislation and judicial thought. In the adoption of the view of the majority the mission .of the law has failed.