I concur in the result arrived at in the foregoing opinion, but not in the reasons given for that result.
The majority seem to approve of that line of decisions which hold that the master is only liable for his negligence in failing to provide a competent foreman, safe instrumentalities, and a safe place in which to work; and that, having done this, his duty to the inferior servant is performed, and he is not liable for the negligence of the foreman resulting in injury to such inferior servant. But while they seem to approve of this line of decisions, they do not follow them, for under these decisions the defendant cannot be held liable in such a case as this for failing to furnish the plaintiff a safe place in which to work. That rule does not apply to a, place rendered unsafe solely by the progress of the very work in which the servant is engaged. Olson v. McMullen, 34 Minn. 94, 24 N. W. 318; Pederson v. City of Rushford, 41 Minn. 289, 42 N. W. 1063; Loughlin v. State, 105 N. Y. 159, 11 N. E. 371. No class of cases hold it to be the absolute duty of the master to furnish a safe place for his servant to work in, when the place is made dangerous, and its character is continually changing, by reason of the progress of the work in which the servant is engaged. There *436is a line of decisions which hold that the mere fact that the foreman has authority to hire, discharge, direct, and oversee inferior servants constitutes him a vice principal as to them. But the majority do not profess to follow this line of decisions, and I do not understand what guiding principle the majority lay down for determining when such a foreman is a vice principal for whose negligence the master is liable. Of course, if this were a case of negligence in failing to furnish a safe place for the servant to work ■in, within the meaning of the cases first above referred to, the foreman charged with the duty of furnishing that place would, as a question of law, be a vice principal for whose negligence the master is liable. But it is not such a case, and in a case of this kind it seems to me that, the question when such a foreman is such a vice principal, is ordinarily a.question of. fact to be determined on other principles.
The question is: As respects the particular danger, is the foreman better able to take care of the inferior servant than the inferior servant is to take care of himself, and how much better? If there is substantial disparity between the foreman and the inferior servant in this respect, then the foreman is a vice principal. For the test by which to determine when a foreman having authority to direct and oversee the inferior servants under him is as to them a vice principal, I still adhere to the principles laid down in my dissenting opinion in Blomquist v. Railway Co., 60 Minn. 426, 430, 62 N. W. 818, 821, where I have considered the question at some length. I am of the opinion that it depends on the amount of actual disparity between the foreman and the inferior servant injured, — disparity in respect to the particular danger by reason of exposure to which he was injured. In this case it would be disparity of knowledge as to the existence of the semicircular crack in the ground. Disparity of knowledge exists where the foreman has or should have knowledge which the inferior servant neither has nor can be expected to have, the want of which knowledge caused or contributed to his injury.
The bill of exceptions shows that such disparity did exist. It is stated that there is evidence “sufficient to show the following state of facts: * * On the morning of the day the plaintiff was injured, the foreman of the crew, Mr. Purvey, observed that a crack in the *437soil existed, extending from the ditch near the railroad track about sixteen feet, describing a semicircle and ending near the ditch; the most distant part of the crack being about four feet from the ditch.” The bill of exceptions then proceeds to state that the foreman procured some of the fellow servants of plaintiff to stand 2-inch planks on end, 10 feet apart, on each side of the ditch, and place horizontally behind these, along each side of the ditch, about a foot below the surface, a single plank, which was held in place by the perpendicular planks being pressed against it and held in position by crosspieces or braces extending from one side of the ditch to the other; that some of the sand in the sides of the ditch had fallen down into it. It is then stated: “This loose sand obstructed the laying of the piping, and the plaintiff, who had been employed in another part of the ditch, and had taken no part in the construction of the curbing, and knew nothing of the crack in the soil at the street-railway track, was ordered by the foreman, Purvey, to leave the place where he had been working, and go down into the ditch near the street-railway track, where this curbing had been put in, and clean out the ditch by removing the loose sand that had settled down into the bottom, so that the piping could be laid;, and the plaintiff did so, and was working in this ditch, with several other men, in clearing it out, the plaintiff standing about ten' feet from the ear track, when a piece of soil and sand constituting the side of the ditch inside of said crack * * * settled down by a sliding movement under the curbing into the bottom of the ditch, catching the plaintiff as he stood there working, doing him the injury complained of.” It also appears from the bill of exceptions that for a distance of 30 feet or more back from the railway track the ditch was about 7 or 8 feet deep. Then we must presume that, when this plaintiff was standing in the bottom of this ditch engaged in his work, he could not see the surface of the ground, and while so engaged had no reasonable opportunity to discover the semicircular crack in that surface.
The foreman had knowledge of the existence of the danger by reason of exposure to which the plaintiff was injured, and the plaintiff neither had, nor could be expected to have, any knowledge of the same. Then I am of the opinion that as to this danger the foreman was a vice principal, for whose negligence in failing to, *438inform the plaintiff! of his danger, or make provision for his safety, the master is liable. There clearly was, as to this particular danger, sufficient disparity of knowledge between the plaintiff and the foreman to constitute the foreman a vice principal. The existence of this disparity, as I have already stated, is a question of fact for the jury, and the burden of proving its existence is on the plaintiff.
The jury should find, in the first place, whether or not the disparity existed which would constitute the foreman a vice principal as to the particular danger; and if it did exist, then, in the next place, they should find whether he was negligent in discharging his duty as such vice principal. However, the judge did not leave it to the jury to determine as a question of fact whether or not the foreman was such a vice principal, but charged them, as a question of law, that he was. But the bill of exceptions does not state that there was any evidence which in any manner contradicts the facts above recited. If there was no such evidence, then it conclusively appears that such disparity of knowledge did exist, and that, therefore, the foreman was a vice principal. Then it was not error to charge, as a question of law, that, as respects this danger, the foreman was a vice principal for whose negligence the defendant was liable.
In this respect this case is similar to the cases of Little Miami R. Co. v. Stevens, 20 Ohio, 415, and Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184. In those cases, as in this, the disparity of knowledge was, on the evidence, so clear and conclusive, that the court had a right, as a question of law, to charge that the foreman was, as respects the particular danger, a vice principal. In the Stevens Case and in the Ross Case the conductor of the train received information of the movements of another train, of which the engineer under him had no knowledge. The conductor negligently failed to communicate this information to the engineer, or use it for his protection, by reason of which there was a collision, and the engineer was injured. In my dissenting opinion in the Blomquist Case I refer to these cases, and say:2 “In each of these cases the disparity between the engineer and the *439conductor consisted in the conductor having knowledge which the engineer did not have, but which was absolutely necessary for the safety of the engineer, and the want of which on the part of the engineer was the cause of his injury.” I then proceeded to show that from the evidence in.each case the existence of this disparity was uncontradicted and conclusive, so that, as a question of law, the conductor was properly held to be a vice principal, for whose negligence the master was liable.
The Blomquist Case was not such a case. There it was a question of disparity of skill, and whether or not such disparity existed was neither undisputed nor clear and conclusive; so that, in my opinion, the question of whether the foreman was a vice principal was not for the court, but a question of fact for the jury under proper instructions. Such would be the disparity here as respects defects in the curbing. The inferior servant here could see the curbing, and examine its construction, as well as the foreman; but whether he had or should have had skill enough to know and appreciate that it was defective and insufficient was not clear or conclusive from the evidence, and was a question of fact for the jury. But this question is not before us, as the judge charged the jury as follows: “I simply say to you that in the placing of these braces there Purvey did not act as the representative of the- defendant, but was a fellow workman.” The court further charged the jury: “I say to you, if he knew the place was a dangerous place at the time he ordered plaintiff into said ditch, and that said walls were unsafe, dangerous, and liable to cave in and injure plaintiff, — if Purvey knew this -fact, he acting for the defendant,— the defendant would be responsible for whatever he may have ■done.” The question before us is whether this latter part of the charge is correct, and, on the evidence, it is my opinion that it is.
Since the above was written, I have read the opinion of Mr. Justice MITCHELL in this case, in which he condemns my position as a dangerous novelty. It is evident from what he says that its novelty has made it a matter of so much suspicion to him that he has given it but the most superficial examination. He seems to think that I have seized upon the mere fact that the foreman happened to know that the curbing was unsafe as the only reason why *440he is a vice principal, and that, if he did not happen to know it, he would not he a vice principal. The most casual reading of what I have said in this and the Blomquist Case ought to show that I take no such position. I. will quote from what I said in that case:3 “Disparity of knowledge is where the foreman has or should hme knowledge which the inferior servant neither has nor can be expected to hmeIt is not merely what the foreman knows, but what he ought to know, what he is negligent in not knowing. In this case the foreman’s actual knowledge of the crack in the side of the ditch is simply an additional circumstance which makes the disparity between him and the plaintiff so clear and conclusive that it should be held as a question of law that sufficient disparity existed to constitute the foreman a vice principal. But the jury might have found the existence of such disparity from the other circumstances of the case, even if the foreman never knew of the existence of the crack. They might have found that under the circumstances of the case the foreman, in the exercise of reasonable care in performing his duties as foreman, should have known of its existence, and of the dangers surrounding the plaintiff by reason of this and the insufficient character of the curbing, and that, under the circumstances, he could not be expected to know of those dangers.
My brother MITCHELL persists in still further misunderstanding my position, and in claiming that I propose to make the master liable for the negligent acts and omissions of the foreman where he owes no duty as foreman to the' inferior servant. It may well happen that an inferior servant is' injured by want of knowledge which the foreman happens to have. So might he be injured by the want of knowledge which another inferior servant happens to have. The question is, is it knowledge which the foreman, as such, should have, and which the inferior servant injured cannot be expected to have? In the Blomquist Case I applied this principle to every type of case found in the books to which, if sound, it should be applicable, and found no inherent difficulties in its practicable application. From the discussion of these principles in connection with those cases, no one ought to be misled into supposing that I *441claimed that the acts or omissions of the foreman, except where he owed a duty as such foreman to the inferior servant, came within the rule. He must not only, as foreman, owe a duty to the inferior servant, hut there must he substantial disparity between them, to make that duty the duty of the master. One class of cases hold that, outside of a few well-defined exceptions, the duties which the foreman owes to the inferior servant are not duties for the performance of which the master is responsible. Another class of cases hold that the master is always responsible for the performance of these duties. I hold that neither rule is correct, but that the true rule lies on a middle ground between these two rules,, and that beyond the exceptions specified in the first rule the master is responsible for the performance of such duties only when such disparity exists between the foreman and the inferior servant. The majority profess to hold that the first rule is correct. The dangerous novelty in my case does not seem to consist in my departure from well-established landmarks (as the majority are equally guilty of that), but in my having taken a compass along with me on that departure. And, whether my theories are sound or unsound, the members of this court who leave the bench and bar of this state to hunt for the law between this case and the Blomquist Case on the one hand and the Lindvall Case on the other hand, ought not to be hypercritical as to my theories.
60 Minn., at page 434, 62 N. W., at page 822.
60 Minn. at page 433, 62 N. W. at page 822.