(dissenting).
In my opinion, the evidence will not sustain a verdict for plaintiff.
I can see no substantial difference in principle between this case and the cases of Reiter v. Winona & St. P. R. Co., 72 Minn. 225, 75 N. W. 219, Swanson v. Great Northern Ry. Co., 68 Minn. 184, 70 N. W. 978, and cases cited. There was no substantial disparity between the foreman and the plaintiff in this case, and, in my opinion, the foreman was not a vice principal with respect to the particular danger out of which the injury arose. No blasting was done at the place where plaintiff was at work for at least four days before the injury; he knew all about the blasting and its effect on the bank; and he had ample time to familiarize himself with the condition in which the blasting left the bank. This work in which he was engaged was not of a temporary or unusual character, but had been carried on for nearly a year; so that the laborers employed in it would not ordinarily be ignorant of its dangers, as was the case in Wolf v. Great Northern Ry. Co., 72 Minn. 435, 75 N. W. 702. On the contrary, the work was of a permanent character, had long been prosecuted, and the employees were generally as familiar with its dangers as were the foremen. I noticed this distinction in the Blomquist case (see 60 Minn. 426, 441), in the Wolf case, and in several intermediate cases.
It is true that the material which plaintiff was engaged in excavating was somewhat different in character from the clay, sand and gravel which was being excavated in the Reiter case, the Swanson case and the other gravel-pit cases, above referred to, and the work in this case was perhaps more dangerous. But the mere fact that the work is dangerous is not the test of whether or not the foreman is a vice principal. Unless the foreman is or should be better able to take care of the inferior servant than the latter is to take care of himself, the foreman is not a vice principal, even though the work is dangerous. In the case of Swanson-v. Great Northern Ry. Co., supra, the complaint alleges that the master had blasted and loosened the bank, of which the servant injured (a common, laborer) had no knowledge, and the bank caved down by reason of this blasting. In Carlson v. Northwestern T. E. Co., 63 Minn. 428, *8765 N. W. 914, there was a great crack in the soil on top of the bank, which the foreman knew and the inferior servant injured did not know, and the bank caved down by reason of the crack. In each of those cases there was sufficient disparity between the foreman and the servant injured to constitute the foreman a vice principal. But there is no such disparity in this case. Every time the plaintiff excavated a shovelful out of this bank, the conditions changed, and the place became more safe or more dangerous. For these reasons I see no difference between this case and the ordinary gravel pit cases.
Under the circumstances of this case, it could not be expected that the foreman would stand over each laborer, watch the change caused by each shovelful taken out, and warn the laborer from moment to moment of the extent of the danger. In this case, the Wolf case, the Beiter case, and the later Swanson case, the majority of this court seem to hold that the question of whether the plaintiff assumed the risk is the test of whether or not the defendant is liable. This is contrary to all other authority. It does not follow that, because the servant does not assume the risk, the master does assume it, whether he is negligent or not. It is often the case that neither of them assumes it. In other words, the doctrine of assumption of risks has no application except to cases where the master is negligent, and would be liable if the servant had not assumed the risk. In my opinion, plaintiff is not entitled to recover.