(dissenting J. I cannot yield my assent to the views expressed by Mr. Justice McGrath in this case. The evidence showed that whatever of fault there was in permitting the car to be loaded in the manner in which it was was the fault of *346an, inspector provided by the company, and no fault was attributed .to the company in employing him. This Court has held, not once, but repeatedly, that an inspector of cars, under such circumstances, is a fellow-servant of the train-men, and that no recovery can be had on account of his negligence. Smith v. Potter, 46 Mich. 258; Irvine v. Railroad Co., 89 Id. 416. And the doctrine of non-liability for the fault of a co-employé has been also applied in other cases where the relations were analogous, and where the authority of the offending servant was quite as broad as is that of one whose duty it is to see that cars are properly loaded. Hoar v. Merritt, 62 Mich. 386; Gardner v. Railroad Co., 58 Id. 584; Greenwald v. Railway Co., 49 Id. 197; Quincy Mining Co. v. Kitts, 42 Id. 34; Michigan Central R. R. Co. v. Dolan, 32 Id. 510. The case of Smith v. Potter was cited and its doctrine approved in Peterson v. Railway Co., 67 Mich. 102, and was also cited with approval in Randall v. Railroad Co., 109 U. S. 484.
But it is suggested that the case of Smith v. Potter has been overruled by Van Dusen v. Letellier, 78 Mich. 492; Morton v. Railroad Co., 81 Id. 423; Roux v. Lumber Co., 85 Id. 519. It is clear, as I think, that it was not the purpose of Justice Morse who wrote the opinion in Van Dusen v. Letellier, to overrule the case of Smith v. Potter. In Peterson v. Railway Co, Justice Morse recognizes the binding authority of Smith v. Potter and other kindred cases in the following language:
“ If the question were an open one in this State, I should not be inclined to hold that either of these persons was a fellow-employe of the plaintiff; but the law in this respect is well-settled in this State, and the circuit judge followed the decisions of this Court, citing them in his charge to the jury.”
In Van Dusen v. Letellier the case of Smith v. Potter is distinguished, as is also the case of Roar v. Merritt. All that is held by Van Dusen v. Letellier is that the employer owes a duty of providing a safe place for his employés to work, and that this duty cannot be delegated to a fellow-servant. The case fully recognizes the distinction between the duty of furnishing a safe place and safe machinery to the employé and the duty of seeing that the machinery, place, or appliances are properly used or employed.1 The same may be said of Morton v. Railroad Co., 81 Mich. 423. This distinction is again recognized in Rawley v. Colliau, 90 Mich. 81, and Kehoe v. Allen, 92 Id. 464. In Morton v. Railroad Co., as the case was put to the jury, the sole question was whether the appliance in question was reasonably safe when originally provided by the defendant, and the circuit judge instructed the jury that the defendant’s liability ceased when it provided a chain that was in the first instance reasonably safe.
*347In Irvine v. Railroad Co., in an opinion by Mr. Justice McGrath, the Court held distinctly that, if the company provided means for the inspection of the cars by a fellow-servant, and the inspector neglected his duty, there could be no recovery.
In the present case the injury resulted, not from any fault in the appliances used, but because, in making use of cars and machinery suitable to the purpose, a fellow-servant of the plaintiff, engaged in the same general employment, within the rule in Smith v. Potter, neglected his duty. The case of Smith v. Potter has not, as I view it, been overruled by the cases referred to, and certainly the Court has not taken the pains to point out to the profession the fact that it has been overruled; on the contrary, its doctrine has been frequently recognized, and has become the settled law of the State. The circuit judge applied the doctrine to the case at bar, and the judgment should be affirmed.
Grant, J., concurred with ^Montgomery, J.See Piette v. Brewing Co., 91 Mich. 605.