I concur in all of the foregoing opinion except that portion of it which deals with the manner in which the court below left to the jury the question of whether the negligence off O’Brien, the foreman, in turning on the power and starting the elevator, was the negligence of a fellow servant or that of a vice principal. The court charged the jury .as follows:
"If you find that, at the time O’Brien started up the elevator, he was doing it in the discharge of his duty in keeping the machinery in order and suitable to operate, then he was acting as vice principal, and his act in starting up the elevator would be the act of the defendant; and if he was negligent in doing so, under all the circumstances, the defendant would be chargeable with such negligence, and the plaintiff would be entitled to rfecover, provided the plaintiff did not contribute to the injury by his own negligence.”
The court further charged the jury that, if the act of the foreman in starting the elevator was merely the act of a fellow servant, plaintiff cannot recover.
While the part of the charge above quoted is in accord with the later decisions of the majority of this court, so far as it is possible to extract any general rule from those decisions (see Abel v. Butler-Ryan Co., supra, page 16, 68 N. W. 205; Carlson v. Northwestern. Tel. Ex. Co., 63 Minn. 428, 65 N. W. 914; Blomquist v. Chicago, M. &. St. P. R. Co., 60 Minn, 426, 62 N. W. 818), I am still of the opinion that it is not good law. Of course, if the machinery was out of order in the sense that it was out of repair, and the servant was injured by reason of the neglect of the foreman to repair it, his neglect would be that of the master, and such foreman would be a vice-principal. But that is not this case. The temporary stoppage of the elevator by reason of the want of power or the slipping of the belt is neither the proximate cause of the injury nor the claim off negligence on which the action is founded; so that the fact that the foreman started up the elevator, "in the discharge of his duty in keeping the machinery in order and suitable to operate,” did not,, in my opinion, constitute him a vice principal. It is true that such duty may have been a foreman’s duty, but, in my opinion, the mere-fact that he is foreman, doing a foreman’s duty, does not in such, a case as this constitute him a vice principal. It requires something more. That something more is the amount of actual disparity which existed between him and the inferior servant as re*87spects the particular danger which caused the injury. In my dissenting opinion in the last case and my concurring opinion in the first two cases above cited, I have quite fully discussed the principle which I think should be applied here. It only remains to apply these principles to this case.
Let us separate the foreman’s duties from the fellow servant’s in this case. The mere act of pulling the lever and starting the elevator was a fellow servant’s duty. But if .the foreman knew that at the time in question the plaintiff’s son was likely to have his arm in the boot, clearing it out, and that the elevator was about to be started without its being ascertained whether such son was so engaged, and warning him if he was, the-foreman would be negligent in performing his duties as foreman if he did not use proper care to see that such son was protected. But, as I have already stated, it requires something more than the mere fact that he is performing a foreman’s duties to constitute him a vice principal. That something more is the disparity aforesaid. In my opinion, it should be held as a question of law that such disparity existed in this case. It is disparity of knowledge.
Quoting from my dissenting opinion in the Blomquist case:2 “Disparity of knowledge is 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 on the part of such servant causes or contributes to his injury.” Said son was down in the basement of the building, with his arm in the boot of the elevator, while the lever which started the elevator was up on the floor above; so that he was absolutely powerless to protect himself against the act of any one starting the elevator. Under these circumstances, it conclusively appears that such disparity existed between the foreman and the inferior servant injured. Then the law should, for such servant’s protection, require a higher degree of responsibility on the part of the master; and therefore the foreman should, as to his act of negligence in failing to look out for the safety of such servant, be held to be a vice principal. Then the error of the court in its charge was error without prejudice, and I concur in holding that the judgment appealed from should be affirmed.
60 Minn. 433.