(dissenting). Plaintiff sued defendants to recover for injuries which he received while in their employ, and which resulted in a loss of his left arm. He recovered a judgment in the trial court, and the case is now here on review at the instance of the defendants.
In 1908 the defendants were engaged in the business of selling and installing automatic sprinkler systems, and it was in August of that year, while they were installing one for Philip Fritz, in his manufacturing plant in the city of Grand Rapids, that plaintiff was injured. The working force consisted of five men, Harry Barnard, the foreman, and four others, one of whom was plaintiff. The defendants , furnished the tools used for doing the work. On the afternoon of the day preceding the injury, while the plaintiff was using one of the stepladders furnished by the defendants, the foreman, Mr. Barnard, came and took it away, and gave plaintiff, instead, a straight ladder about 12 feet long, which he had borrowed from Mr. Fritz. The plaintiff made some objections to using it, but was assured by the foreman that it would serve his purpose as well, and that it was safer and better, as there were spuds in the bottom which would prevent its slipping. On the following day the plaintiff placed the ladder against one of the joists in the ceiling of the room, and mounted it to make a pipe connection near the ceiling. On returning, and when on the fourth rung from the bottom, it broke near the right-hand standard, throwing plaintiff forward upon a revolving shaft, which engaged his clothing, and he was wound up and injured so. that amputation of his arm became necessary.
The negligence complained of was the failure of the defendants to furnish the plaintiff with a reasonably safe ladder with which to perform his work. The defendants resisted the claim of plaintiff upon the grounds, first, that the declaration was fatally defective because it failed to set out a cause of action; second, that they were not negligent; third, that the foreman, Harry Barnard, was a fellow-servant of the plaintiff, and that they were not *20liable for his acts in directing him to use the borrowed ladder; fourth, that the plaintiff was guilty of contributory negligence.
1. The defendants made numerous objections on the trial to the sufficiency of the declaration, and contended that it failed to set out a cause of action. We cannot agree with them in this contention. The declaration alleged the relation of master and servant; that it was the duty of the defendants to furnish the plaintiff with a safe ladder with which to perform his work; that the defendants failed and neglected to do so, and, in consequence thereof, the plaintiff was injured, without fault upon his part. With these essential allegations, we think the declaration sets out a cause of action with sufficient certainty, in the absence of a demurrer. It is quite likely that many of the objections made by counsel, if raised by demurrer, would have been sustained, but instead they chose to plead the general issue, and go to trial, reserving their objections for the trial. Under this practice, if the declaration sets out a cause of action, the objections will be overruled. Rowland v. Kalamazoo County Sup’ts of Poor, 49 Mich, 553 (14 N. W. 494); Sutton v. Van Akin, 51 Mich. 463 (16 N. W. 814); Whoram v. Township of Argentine, 112 Mich. 20 (70 N. W. 341).
2 Were the defendants negligent? Nothing is better settled in the law relating to personal injuries than the rule that a master is in duty bound to furnish his servant with reasonably safe tools and appliances with which to perform his work, that this duty cannot be delegated to another so as to relieve the master of personal responsibility. Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St Rep. 298); Van Dusen v. Letellier, 78 Mich. 492 (44 N W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N W. 82, 20 Am. St. Rep. 496); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426). In the case before us the master furnished the tools with which to install the system. Ladders were an important part of the tools necessary to do the work. *21It was therefore incumbent upon the defendants to furnish plaintiff with one that was reasonably safe for the purpose for which it was to be used. The plaintiff’s testimony showed that there were no obvious defects in the ladder, and that at the end of the broken rung and the place where it had been nailed to the standard the wood was dozy. This testimony, together with the fact that it broke under plaintiff’s weight, made it a question of fact for the jury to say whether the ladder was reasonably safe.
The defendants insist that such a ladder belongs to that class of tools usually denominated small tools, which the servant is bound to inspect for himself. Whether it falls within that class is not of very much importance in this case. If the ladder did belong to that class, then it was the duty of the defendants to make a reasonable inspection of it before they placed it in the hands of the plaintiff. The rule has been laid down by this court that small tools, which are not of the servant’s selection, must, in the first instance, be inspected by the master to see that they are reasonably safe and fit for the use intended. Noble v. Steamship Co., 127 Mich. 103 (86 N. W. 520, 54 L. R. A. 456, 80 Am. St. Rep. 561). In any event, whether it be numbered among the tools which it was the duty of the master to inspect and keep in repair, or whether it be numbered among the small tools, it was the duty of the defendants to make a reasonable inspection of the ladder before putting it in usé, to determine whether it was reasonably safe and fit for the use which was to be made of it.
3. But it is said by the defendants that they furnished a sufficient number of ladders with which to do the work, and that the foreman had. no authority to borrow a ladder from Mr. Fritz, and that in doing so he acted outside of his authority, and as to such act he was a fellow-servant of the plaintiff. The testimony shows that Mr. Barnard was placed in charge of the work and of the men, and that he directed how the work should be done, and directed *22the men where to work and what tools to use. In directing the plaintiff to use the ladder in question, the jury found that the foreman was acting within his authority. The plaintiff was not required to know whether the ladder belonged to defendant or to some one else, inasmuch as he did not have the right of selection. De Maries v. Jameson, 98 Minn. 453 (108 N. W. 830); San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320 (42 S. W. 1009). The foreman, in the course of his duty, had the authority to direct the plaintiff to use this ladder, and it was the duty of the plaintiff to obey this direction, unless there was some obvious defect in it. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205. But it is urged that the foreman took part in the work and labored with his men, and by reason thereof he was a fellow-servant of the men. We agree with counsel that this is generally true as to acts which it is not the duty of the master to perform, but, as to acts which it is the duty of the master to perform, the foreman represents the master, and is not a fellow-servant of the men. Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354). The duty to furnish plaintiff a reasonably safe ladder was the master’s duty. Therefore, when Mr. Barnard, as foreman, failed to discharge that duty, his neglect was the master’s neglect.
4. Was plaintiff guilty of contributory negligence?' The conduct of the plaintiff and the inferences which were drawn from his conduct were in conflict. Under such circumstances, the contributory negligence of the plaintiff became a question of fact, to be determined by the jury, and the trial court was right in submitting it to them. The questions involving the negligence of the defendant, the contributory negligence of the plaintiff, the extent of the authority of the foreman, whether reasonable inspection of the ladder was made, and whether it would have disclosed the defect if it had been made, were *23all questions left to the jury as questions of fact by the trial court. We see no error in so submitting them. They were all submitted to the jury under very full and careful instructions by the trial court, and we think there was such testimony as justified the verdict of the jury upon all of them. We have examined the other assignments of error, and find nothing in them that calls for a reversal of the case.
The judgment of the trial court should be affirmed.