(dissenting). Sec. 1636/, Stats. (1898), provides :
“The owner or manager of every place where persons are employed to perform labor shall surround every stationary vat, pan or other vessel into which molten metal or hot liquids are poured or kept with proper safeguards for the protection of his employees, and all belting, shafting, gearing, hoists, fly-wheels, elevators and drums therein which are so located as to be dangerous to employees in the discharge of their duty shall be securely guarded or fenced.”
The particular provision of the foregoing statute applicable to the instant case is:
“All . . . gearing ... so located as to be dangerous to •employees in the discharge of their duty shall be securely .guarded or fenced.”
It seems quite plain that if the gearing is in fact such gearing as the statute describes, viz.; one so located as to be dangerous to employees in the discharge of their duty, the duty to guard or fence it is mandatory; and the manner in which it .shall be guarded or fenced is in like case covered by manda*121tory statute, viz., it shall be “securely guarded.” There should be no great difficulty in the construction of such a statute if we approach it with judicial equanimity. There is no contention in this case that the statute makes the employer an insurer. There is no contention that it takes away the defense of contributory negligence. Panic on these two propositions, self-suggested, seems to be responsible for the extraordinary construction first attempted to be given to this statute in Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671, and returned to and revived with additional and accumulated error by the majority opinion in the instant case, notwithstanding many cases in this court later than the Quinará Case and inconsistent therewith. Is there any novelty or hardship in holding a person liable for failure to discharge a statutory duty if such failure is the proximate cause of an injury to another for whose safety the statutory duty was imposed ? Speaking of the same statute it was held in Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, a case later than the Quinará Gase, and strangely enough not referred to in the majority opinion in the instant case:
“The statute of this state requires all gearing so located as to be dangerous to employees when engaged in their ordinary duties to be securely guarded so as to be safe to such employees in such employment. If the sprocket wheel was so located as to be dangerous to plaintiff while engaged in his ordinary duties, unless guarded in some proper way, then the statute applies and the absence of the guard was negligence per se."
If this is the law, then the opinion of the majority is not law, and it must be apparent to every one, layman or lawyer, that this latter case conforms to the statute, while the majority opinion in the instant case does not. The majority opinion in the instant case puts forward as an excuse for departing from the statute that otherwise the venerable and valuable defense of contributory negligence might or would be excluded and that otherwise the statute might make the em*122ployer an insurer of the safety of his employee. These twin specters 'of the imagination are also disposed of by former cases in this court.
“This court has distinctly held that where the law requires some particular thing to be done by a person to guard the personal safety of others, a failure to perform the duty so imposed constitutes actionable negligence at the suit of a person of that class, injured by such failure of duty, without contributory negligence on his part. Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041.” Klatt v. N. C. Foster L. Co., supra. See, also, Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185, 124 N. W. 299.
Speaking of an ordinance cognate in character to this statute this court said:
“If there was such an ordinance and it was valid, it was error to leave the question to the jury to say whether a violation thereof constituted negligence.” Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 358, 85 N. W. 1036, and cases cited.
Many other cases will be found cited in these opinions. So that the doctrine is neither novel nor dangerous, nor does it exclude the defense of contributory negligence'nor make the master an insurer. The majority in the instant case simply frightened themselves without cause. Quoting again from Klatt v. N. C. Foster L. Co., supra:
“True, it is sometimes said that the omission of a statutory duty is not negligence per se, but only evidence of negligence. That rule applies only where the injury caused is not within the scope intended to be guarded against by the statutory requirement, as in cases of injuries to persons, contributed to by failure to fence railway tracks, the primary purpose of which is to prevent injuries to cattle and other domestic animals. Schmidt v. M. & St. P. R. Co. 23 Wis. 186. In Union P. R. Co. v. McDonald, supra [152 U. S. 262], and Hayes v. M. C. R. Co., supra [111 U. S. 228], the distinction is clearly pointed out between cases where omission of a statutory duty is negligence per se¡ and where evidence of negligence only.”
*123Tbis is also in conflict with tbe majority opinion in tbe instant case.
In Van de Bogart v. Marinette & M. P. Co. 132 Wis. 367, 106 N. W. 805, an instruction to tbe jury concerning tbe statute in question and containing tbis sentence was approved:
“Tbe failure to guard or fence a set-screw on a shaft so located as to be dangerous to employees while in tbe discharge of their duty would be negligence.”
This, as I understand it, makes tbe negligence of tbe employer a matter of law, provided tbe shafting is so located, and therefore that decision is in conflict with tbe decision in tbis case. Given a shaft so located as to be within tbe calls of tbe statute, if tbe failure to guard it is negligence 'per se, or if tbe duty to guard it is a duty imposed by law, then it follows that it is no excuse for tbe defendant that other persons also disregard tbis legal duty or commit other acts which also constitute negligence per se.
In Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694, judgment for tbe plaintiff was affirmed notwithstanding tbis instruction given to tbe jury:
“Tbe law requires that the employer shall securely guard or fence shafting which is so located as to be dangerous to employees in tbe discharge of their duties, and if you find that tbe shafting in question, under all tbe facts and circumstances proven, was so located as to be dangerous to tbe plaintiff in the discharge of bis duties in tbe line of bis employment at tbe time of tbe injury to him, you should answer tbis question ‘No.’ ”
Tbe question so peremptorily directed to be answered in tbe negative was tbis: “Was such place so furnished by tbe defendant a reasonably safe place in which to do bis work ?” Here is a direct instruction making it a matter of law that tbe place was unsafe if tbe shaft was so located as to be dangerous to employees in tbe discharge of their duty and unguarded. Tbis is also tbe necessary result of tbe decisions *124in Reffke v. Patten P. Co. 136 Wis. 535, 117 N. W. 1004; Hoffman v. Rib Lake L. Co. 136 Wis. 388, 117 N. W. 789; and Miller v. Kimberly & C. Co. 137 Wis. 138, 118 N. W. 536, all cases resting on tbis statute. In Anderson v. Horlick's M. M. Co. 137 Wis. 569, 119 N. W. 342, tbe court said:
“Wbat would constitute a reasonable guarding of an elevator entrance under tbe circumstances mas determinable with reference to the mandate of the statute that it must be securely guarded. Nothing short of that would be a reasonable guarding.”
Tbis is also in conflict witb tbe opinion in tbe instant case. Now if we compare wbat was said by tbis court in these de-cisions witb wbat was said by tbe court below in tbe instant •case to tbe jury for wbicb tbe judgment below was reversed, not selecting a detached sentence from tbe instructions below .as is done iñ tbe majority opinion, but giving tbe context, we will find that tbe instruction given by tbe court below was but a paraphrase of tbe foregoing language quoted from tbis court in Klatt v. N. C. Foster L. Co., supra; Van de Bogart v. Patten P. Co., supra; Walker v. Simmons Mfg. Co., supra; and Anderson v. Horlick’s M. M. Co., supra. Tbe instruction in the instant case in the court below was as follows:
“Tbe law requires tbe employer of labor, where tbe laborer is required to work about dangerous gearing wbicb is so located as to be dangerous to tbe workmen, to securely fence or guard tbe same. It was the duty under tbis statute for tbe defendant to securely guard tbe gearing of tbe machine in •question. Tbe evidence of tbe plaintiff, tbe plaintiff claims, tends to prove that tbe defendant was guilty of negligence in not complying witb tbe law in tbis respect. Tbe defendant claims that its evidence tends to prove that tbe gearing of tbe machine in question was securely guarded. By securely guarding it is meant that the defendant should guard the gearing safely, that the persons who work about the gearing should be secure against danger or violence while performing their work. Tbe statute in relation to tbis question reads as follows (Reads statute to tbe jury.)
*125Tbat sentence from the foregoing instruction criticised by tbe majority opinion, and for tbe giving of wbicb tbe judgment was reversed, in substance means, and could only b& taken to mean, tbat by “securely guarding it” is meant tbe de' fendant should securely guard tbe gearing in question. It is not very instructive, but at tbe same time it is not barmful or misleading. Great stress is laid on tbe closing words of tbe sentence, “tbat persons wbo work about tbe gearing should be-secure against danger or violence while performing their work.” It is said, unfairly I think, tbat this makes tbe master an insurer of tbe safety of bis servant. To me it merely says tbat a secure guard is one so constructed tbat persons wbo work about tbe gearing should be secure against danger or violence while performing their work. Not a very enlightening or accurate definition, it is true, but it will compare very favorably with many definitions found in tbe reports of this court. I can see no barm in this extemporaneous attempt of' tbe circuit court. Tbe plain meaning of tbe whole instruction is not tbat tbe employee should be secure against danger or violence from other things than tbe unguarded gearing, and not tbat be should be secure against danger or violence from this latter in case of bis contributory negligence, because tbe question of contributory negligence was also separately submitted to tbe jury under proper instructions. If circuit judges are to be held down to such technicalities in instructing tbe jury, and judgments reversed for tbe use of language in such instructions wbicb is tbe substantial equivalent of tbe language used by this court in its opinions on tbe same subject, we are extending mere technicalities beyond reason and disregarding ch. 192, Laws of 1909 (sec. 3072m., Stats.), because it cannot be fairly said tbat any jury could be misled by the subtile and hypercritical distinctions wbicb might be traced out between tbe language employed by tbe circuit court' in this case and tbe disposition of tbe same subject in the above cited decisions of this court. Compare it with tbe ex*126cerpt from Anderson v. Horlick's M. M. Co., supra, above quoted, or the excerpt from Klatt v. N. C. Foster L. Co., supra. I do not remember to bave ever seen an opinion of a court of last resort containing so many erroneous statements of law as tbe majority opinion in the instant case. Setting forth some of these as illustrative and quoting from the opinion as approved by the majority and filed:
“It [the statute] requires him [the employer] first to decide whether the gearing is so situated as to be dangerous to employees in the discharge of their duty, and, second, to securely guard or fence it if dangerous. He must use ordinary care and prudence in deciding the first question, and decide it as ordinarily careful and prudent employers under like circumstances, in honest exercise of their judgment, would decide it. If such an employer could reasonably apprehend that injury might result to an employee in the discharge of his ordinary duties from the unguarded gearing, then it is dangerous and must be guarded, and he must also proceed to furnish such a guard, or at least as effective a guard as such ordinarily careful and prudent employers under like circumstances would and do deem it their duty to furnish. This is a secure guard within the meaning of the law. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153. The only exception to the last proposition is that if the guard so ordinarily furnished be obviously dangerous it will not be deemed sufficient. Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689.... So the true rule, subject to the limitation referred to, is that, if the employer furnish such a guard as is in general use among employers of ordinary caution in the same line of business and under the same circumstances, he has discharged the duty imposed upon him, and the guard so furnished is in a legal sense reasonably safe and the dangerous machinery has been securely guarded within the meaning of the statute.”
Observe, first, that the opinion departs from the ancient and long established rule of this court that the standard of care by which the conduct of the person accused of negligence is tested “is such care as the great mass of mankind ordinarily exercise under the same or similar circumstances.” Nass v. *127Schulz, 105 Wis. 146, 81 N. W. 133; Simmons, Wis. Dig. 2475 and eases. In tbe majority opinion negligence is measured by tbe care wbicb employers ordinarily exercise. If employers are to be tbus privileged, wby not measure tbe plaintiff’s care by tbe care wbicb tbe great mass of employees ordinarily exercise under tbe same or similar circumstances ? Again, employers as a class bave duties imposed upon them by tbis statute. All employers is a large class and necessarily includes “employers of ordinary caution in tbe same line of business and under tbe same circumstances.” So tbat if employers of ordinary caution, etc., disregard tbis statute and set it at naugbt, or even if all employers disregard tbe statute •and set it at defiance, each one wben sued for damages may escape under tbis decision by proving tbat tbe others did not •comply with tbe statute. Tbis grants an extraordinary class privilege. It nullifies tbe statute if employers wish to nullify it. I regard tbis as a wholesome statute, and I believe it is generally so regarded. How can tbe legislature ever enact statutes wbicb shall be sufficient for tbe amelioration of tbe condition of the laboring men, or to lessen tbe annual slaughter of employees engaged in tbe manufacturing industries, if sucb statutes are to be whittled away by construction in tbis manner. I say whittled away, because tbe decision places tbe liability of an employer with reference to dangerous machinery precisely upon tbe same ground tbat it would occupy at common law in tbe absence of tbis statute. But I do not wish to be understood as stating tbat tbe opinion would be correct if tbe writer bad used tbe words above quoted from Nass v. Schulz instead of tbe word “employers.” It would be wrong in tbe former case and worse in tbe latter. No person can excuse bis noncompliance with statutory duties on tbe ground tbat in tbe effort to obey tbe statute be exercised “sucb care as the great mass of mankind ordinarily exercise under tbe same •or similar circumstances.”
“However rigidly a court may uphold tbe right of a master to follow general usage, it is clear tbat evidence of a custom *128to disregard a law requiring employers to use an appliance calculated to preserve their servants from some particular danger can never be admissible where the question of the exercise of due care on the employer’s part is raised.” 1 Labatt, Mast. & Serv. § 47, citing Cayzer v. Taylor, 10 Gray, 274, 69 Am. Dec. 317.
It does not, however, require authority to support such a self-evident proposition. Yet the opinion criticised will bear' no other reasonable construction than that an employer commanded by sec. 1636;, Stats. (1898), to cover a gearing in fact located as therein described/is not absolutely required to-do so, but only to decide whether the gearing is so situated and use ordinary care and prudence in so deciding, and decide it as ordinarily careful and prudent employers under like circumstances, in honest exercise of their judgment, would decide it. This means that the employer might urge in justification of his disregard of this statute that he honestly decided not to cover the gearing because he thought it not so-located as to be dangerous, although as a matter of fact it may be so located, and that he did so as ordinarily careful and prudent employers under like circumstances, in honest exercise of' their judgment, would decide it. He and they decide upon what is their duty under the statute. Next, the statute says-that the gearing shall be securely guarded, but the opinion says No, that the employer is only required to furnish “at. least as effective a guard as such ordinarily careful and prudent employers under like circumstances would and do deem it their duty to furnish.” This results in giving to a class-designated in a statute as the subjects of regulation the right to determine the diligence of its own members by comparisons-among themselves, and thus to decide whether or not they will comply with the statute, and whether or not, having arrived at the conclusion that a guard is required, they will conform to the statute and provide a secure guard, or merely one which they and others of their class “would and do deem it their-*129duty to furnish.” This is, to say tbe least, extraordinary. It is neither good law nor justice nor good sense. Then again, the majority opinion contains this statement:
“If such an employer could reasonably apprehend that injury might result to an employee in the discharge of his ordinary duties from the unguarded gearing, then it is dangerous and must be guarded.”
But only a few months ago this court said, speaking of the same statute:
“The law is cast in general terms. We cannot interpolate into it the word ‘ordinary,’ and test appellant’s conduct by a different standard than the legislature, in the proper execution of its police power, created. Such limitation upon the duty to guard as might be indicated by the word ‘ordinary’ . . . the legislature manifestly did not intend should exist, from the fact that the word was industriously, by amendment [in 1898], dropped from the law as it formerly existed; the words ‘discharge of their duty’ being substituted for ‘engaged in their ordinary duties.”' [Miller v. Kimberly & Clark Co. 137 Wis. 138, 142, 118 N. W. 536.]
We who are capable of a record like this should view with a good deal of liberality and charity the shortcomings of our brethren of the circuit bench. Speaking of the prejudicial effect 'which the criticised instruction in the instant case must have had, the majority opinion goes on to say:
“The process of reasoning by which the jury would naturally reach the conclusion which it did is simple, direct, and well nigh obvious: The master should have provided a guard which would have prevented the injury. He did not do so. Therefore he did not perform his duty by properly guarding the gear.”
This part of the opinion failed to keep in mind that we had decided that in case the gearing was so located as to be dangerous the failure to cover it was negligence per se (Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563) ; that there was a ■finding based upon sufficient or undisputed evidence that the *130failure to guard was the proximate cause of plaintiff’s injury; and that this court has also decided that “what would constitute a reasonable guarding . . . under the circumstances was determinable with reference to the mandate of the statute that it must be securely guarded. Nothing short of this would be a reasonable guarding.” Anderson v. Horlick's M. M. Co. 137 Wis. 569, 119 N. W. 342. With these in mind, perhaps the instruction would not have been considered so prejudicial. I cannot too vigorously emphasize the fact that the majority opinion brushes away the statute entirely and places the liability of the master on the same ground and subject to the same limitations and the same defenses as at common law.
I am authorized to say that Mr. Justice Siebecher and Mr. Justice Kerwin concur in this dissent.