While I concur in the result, and am not prepared to dispute the correctness of the ground upon which the decision is put in the foregoing opinion, yet I prefer to place it upon the ground that, under the particular facts of this case, the box was not an instrumentality or appliance furnished by the defendant to the plaintiff for use in the performance of his work; and, what is perhaps but another way of stating the same thing, that, in what Lintner did in reference to procuring the box for plaintiff’s temporary use, he was a fellow servant with plaintiff, and not a vice principal.
CANTY, J.If the box in question is to be classed with the permanent tools or instrumentalities furnished by the master for the performance of the work, the verdict should stand. In that case it would be the duty of the master to inspect the box before furnishing it to the servant for use. In making or failing to make such inspection, the foreman would be acting as a vice principal, and the servant would be entitled to act on the assumption that the master had performed his duty in furnishing safe instrumentalities. Hut, in my opinion, the box cannot be so classed. On the contrary, it belongs to that class of temporary appliances which the servants provide for themselves during the progress of the work, and as a part of that work. It belongs to the same class of appliances as temporary scaffolding, staging, and curbing, constructed during the progress of the work, *23and as a part of it. To constitute the foreman a vice principal in such a case, there must have been some substantial disparity in knowledge or skill between the foreman and the inferior servant injured. But there was none in this case. A person performing plaintiff’s duties should be as capable, and plaintiff was as capable, of inspecting the box, and judging of its strength, as the foreman was, or as a competent foreman should be. Then, as respects the matters in question, plaintiff and the foreman were fellow servants, and plaintiff cannot recover.