(concurring). In this case there was a special verdict as follows: (1) Had the defendant, prior to plaintiff’s said injury, provided a step-ladder for the oilers-to use in connection with the pump in question ? Answered,, *561No. Questions (2), (3), and (4) not answered. (5) Was the gearing by which plaintiff was injured so located as to be dangerous to an oiler in the discharge of his duties while using ordinary care? Answered, Yes. (6) If you answer question number (5) “Yes,” did defendant fail to have said gearing securely guarded or fenced at the time of the plaintiff’s injury? Answered, Yes. (7) If you answer question number (6) “Yes,” then was it practicable to have securely guarded said gearing so as to render it reasonably safe for plaintiff to perform his duties as oiler without a ladder? Answered, No. (8) If you answer the sixth and seventh questions “Yes,” then was such failure to securely guard and fence said gearing the proximate cause of plaintiff’s injury ? Answered, No. (9) Did any want of ordinary care on plaintiff’s part proximately contribute to produce his injury ? Answered, No. (10) What sum of money would fairly compensate the plaintiff for the damages caused to him by his said injury? Answered, $4,500.
The circuit court, after denying the plaintiff’s motion to change the answers to the seventh and eighth questions from “No” to “Yes” and for judgment, and the defendant’s motion to change the answers to the first and ninth questions from “No” to “Yes,” ordered as follows:
“It is further ordered that the motion of the defendant for judgment upon the verdict be and the same hereby is granted, and it is ordered that the clerk enter judgment herein upon the special verdict in this action, dismissing the plaintiff’s complaint upon the merits and for costs in favor of defendant against the plaintiff.”
The plaintiff appealed from a judgment entered pursuant to this order. The decision of this court, in which I concur, is that this judgment of the court below be reversed and that the plaintiff is entitled to judgment on the verdict above set forth. The requirement that plaintiff remit part of the damages found by the jury in order to entitle him to j'udg*562ment on tbe verdict rests alone on tbe conception that tbe damages found are excessive, and has no logical or legal relation to tbe questions of liability or those of statutory construction discussed. That part of tbe majority' decision which undertakes to change the answer to the seventh question of the special verdict because, as said, it appeared from the photograph in evidence it was practicable to have securely guarded the gearing, and that part changing the answer to the eighth question above set forth from “No” to “Yes” because it appeared conclusively from the evidence that the failure to securely guard the gearing was the proximate cause of plaintiff’s injury, necessarily decide that the practicability of securely guarding a gearing may be conclusively inferred from inspection of such gearing or of an accurate picture thereof, and that the proximate cause (which, according to a long line of decisions of this court, cannot exist as a proximate or legal cause unless the party responsible for such cause in the exercise of ordinary care ought to have anticipated therefrom some injury to another) may be inferred from the facts that the gearing was so situated as to be dangerous to employees in the discharge of their duties and was not securely guarded. With these two changes the verdict of the jury as above set forth may be restated as it is corrected and established by this court:
The defendant failed to provide a step-ladder for the oil-ers to use. The gearing by which plaintiff was injured was so located as to be dangerous to an oiler in the discharge of his duties while using ordinary care. The defendant failed to have the said gearing securely guarded or fenced. It was practicable to have securely guarded the gearing so as to render it reasonably safe for plaintiff to perform his duties. The failure to securely guard the gearing was the proximate cause of plaintiff’s injury. There was no contributory negligence.
The verdict having been allowed to stand establishing the foregoing facts, the introduction of detailed evidential facts *563only produces confusion. On these facts only, judgment is given for the plaintiff. The failure to provide a step-ladder may be eliminated as irrelevant. There is no finding that the defendant was negligent. The sole basis of the judgment for plaintiff is that the gearing was so situated as to bring it within the terms of the statute (sec. 1636;] Stats. 1898); that although it was practicable to do so the defendant failed to securely guard it; that the plaintiff was injured in consequence of such failure to securely guard such gearing so situated. I agree that this is the law. It is in harmony with Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563; Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912; Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185, 124 N. W. 299; Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 85 N. W. 1036; Van de Bogart v. Marinette & M. P. Co. 132 Wis. 367, 112 N. W. 443; Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694; Anderson v. Horlick's M. M. Co. 137 Wis. 569, 119 N. W. 342; 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. There appears to exist in this court, observable in the majority opinion in this case as well as in many other opinions, a belief that the majority of the court by force of numbers and by mere proclamation can alter the ratio decidendi of a decision by declaring that it means something which aside from the proclamation it would not mean. I do not so understand the common law.
It is quite unnecessary to reiterate a dissent. I should not do so here but for the fact that the majority opinion, goes out of its way to bring in West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992, as a sort of harbinger of this case, and laboriously and lamely attempts to vindicate that decision as controlling this case notwithstanding my dissent in the West Case and my concurrence in this case. The real point decided in the West Oase was that the jury was misinstructed *564because tbe trial judge said: “By securely guarding it is meant that tbe defendant should guard tbe gearing safely tbat tbe persons wbo work about tbe gearing should be secure against danger or violence while performing their work.” I thought then and still think that these words, while inaccurate and imperfect as a definition, were substantial language equivalents for what Justice Massi-iall, speaking for the court, said in Anderson v. Horlick’s M. M. Co. 137 Wis. 569, 119 N. W. 342, and were substantially in accord with other cases mentioned. For the use of these words alone was the judgment in the West Gase reversed, and it might be profitable to compare the instruction condemned in the West Gase as erroneous or misleading with that mildly criticised but not considered so erroneous as to prevent a judgment by this court for the plaintiff in the instant case. The charge here was: “A gearing is securely guarded or fenced when it is so guarded or fenced that it would not be dangerous to any employee required to work in its vicinity if such employee uses ordinary care for his own safety.” The difference appears to be between the words “should be secure against danger or violence while performing their work,” and “would not be dangerous to any employee required to work in its vicinity.” But in writing the majority opinion in the West Gase the court went beyond what was necessary to the decision and resurrected the old case of Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671, disregarding, and as I think overruling, a number of later decisions, and proclaimed law which I considered for reasons there stated erroneous and even absurd. If, as stated in the West Gase, the employer is not bound to conform to the statute, see. 1636/, but only to exercise ordinary care so to do, and especially if it be considered that this exercise of ordinary care may be established by proof of what other employers do in respect to covering gearings, then the verdict in this ease would not warrant a judgment for plaintiff because it contains no find-*565mg that tbe employer was negligent or failed to exercise ordinary care. "Where there is no finding of negligence therein the verdict is defective unless the court can say as matter of law that negligence has been shown. Orttel v. C., M. & St. P. R. Co. 89 Wis. 127, 61 N. W. 289, cited with approval in Morrison v. Madison, 96 Wis. 452, 71 N. W. 882; Beaton v. Milwaukee, 97 Wis. 416, 73 N. W. 53; La Fave v. Superior, 104 Wis. 454, 80 N. W. 742; Hildman v. Phillips, 106 Wis. 611, 82 N. W. 566; Strasser v. Goldberg, 120 Wis. 621, 98 N. W. 554. In the instant case the judgment was for the defendant. In the absence of finding of negligence by the jury the effect of this judgment was to determine that there was no negligence. Lehman v. C., St. P., M. & C. R. Co. 140 Wis. 497, 122 N. W. 1059, citing sec. 2858m, Stats. (Laws of 1907, ch. 346) ; Bates v. C., M. & St. P. R. Co. 140 Wis. 235, 122 N. W. 745; Bratz v. Stark, 138 Wis. 599, 120 N. W. 396. There are other and later cases to this effect. . Notwithstanding this condition of the record and on this verdict failing to find negligence, the judgment in the instant case is reversed and judgment ordered for the plaintiff. To my mind this is because, notwithstanding protestations to the contrary, the court has here again decided that the infraction of the statute, sec. 1636/, found by the verdict constitutes negligence per se. So the real decision in this case in which I concur is contrary to the case of West v. Bayfield M. Co., supra. There is no finding in this case that can be said to cover the question of defendant’s negligence or of the item of anticipation in the question of proximate cause, and yet judgment is ordered for the plaintiff. There is nothing either in the verdict or in the evidence from which the inference of negligence can be drawn, except that the., gearing was so situated as to be dangerous to employees in the discharge of their duty and that it was not securely guarded. I am quite aware that if one roil up the legal waters sufficiently he may draw therefrom whatever fish he *566pleases, provided always be bas the sole right to name the fish; and so I can understand that the majority by mere force of numbers and dogmatic assertion may declare this conclusion that the defendant was negligent a conclusion of fact. But that does not make it so. This is merely calling it by a selected name without reference to its real nature for the purpose of justifying the arbitrary conclusion that the result will be rebuttable by proof that this employer did as other employers do. In the Klatt Oase this court declared that the failure to perform the statutory duty was negligence per se. Here, that the same failure is negligence in fact, which if not rebutted entitles the plaintiff to a judgment. It may be said there is not much difference. The regrettable thing is the confusion thus brought into the law. In the West Oase it was declared (obiter) that it was sufficient to defeat or rebut this liability to show that other employers did not cover like gearings. This I think I have shown to be erroneous, if for no other reason than that it permits the class regulated by the statute, by acting together, to nullify the statute. This is attempted to be promulgated (obiter) in the instant case. But in the instant case this has also been coupled with the inconsistent declarations, (a), (b), (c), and (d), irifra, which show that other more logical grounds ordinarily used to rebut negligence are not available against this so-called negligence in fact. I do not consider the fact that sec. 1636;’;’, Stats. (Laws of 1905, ch. 303), speaks of negligent omission to guard or fence at all significant or material. The presumption is that the lawmakers meant negligence per se, gathering their wisdom from the Klatt Oase and subsequent confirmatory decisions. This reference to sec. 1636;’; seems to me like grasping at straws. I cannot reconcile the statement that the fact of a gearing so located as to be dangerous to employees in the discharge of their duty, together with the fact that this gearing remained uncovered, established negligence of the employer as a conclusion of fact, *567■with, tlie disposition made of this case or with the following quotations from the majority opinion:
(a) “The conditions of the statute being satisfied and there being no contributory negligence on the part of appellant, as the jury found, liability followed absolutely, as it seems. The statute as construed leaves no fair room to doubt but that such circumstances as were found make a clear remediable wrong. To inject any other independent circumstance into such a case might well create confusion under any circumstances.”
(b) “The intent of the statute is that if an employer maintains a situation within it, which as an ordinarily prudent man he ought reasonably to apprehend may cause a personal injury to any of his employees in the discharge of his duty, he must hold himself responsible for the consequences proximately. produced thereby to any such employee without his contributory negligence. In that situation the rule of the statute is inexorable.' The charity of the law as to the employer has been exhausted. There are only left its penalties, from which there is no escape under the law as it stands. It is no defense or excuse as regards civil remedies that it is not practicable to guard against the danger, or to efficiently do so without some particular instrumentality, as in this cas¿ a ladder. If such particular instrumentality is essential to an effective guarding or fencing, then failure to supply it as here, is involved in and part of the failure to securely guard or fence.”
(c) “We fully agree with counsel for appellant that the statute prohibits a person from using machinery under such conditions that, from the standpoint of ordinary care, the situation will imperil the personal safety of his employees in the discharge of their duties in the exercise of ordinary care. It is no answer to a case satisfying the statutory conditions that it was impracticable to comply with the statute. The police power, as the statute has been construed, was not exceeded in passing it. Therefore, the duty to comply therewith is absolute.”
(d) “There was no thought, however, of holding, as to a case within the statute — one where a reasonably prudent man would or might reasonably apprehend injury to his em*568ployees or some one of them in the discharge of dnty in the exercise of ordinary care without the protection contemplated by the statute — that unreasonable interference with operations by providing such protection, is a defense for failure to do so.”
Each and every of the foregoing (a), (b), (c), and (d) is to my mind inconsistent with the broad statements contained in the majority opinion in the West Case and inconsistent with the quotation from that opinion approved in the majority opinion in the instant case. I am unable to detect any substantial difference between a duty to exercise ordinary care and “an absolute duty to exercise ordinary care.” There is no doubt an important distinction between a rule which requires one to do or omit to- do a designated act and a rule which merely requires one to exercise ordinary care. The common, law presented instances of each rule. As the case of cattle straying from the premises of the owner and cattle escaping from custody while being lawfully driven on the highway. Metropolitan C. Ins. Co. v. Clark, ante, p. 181, 129 N. W. 1065. An innkeeper, like a carrier, was liable for all goods of his guest lost in the inn unless the loss happened by act of God or by that of a public enemy or by negligence of the owner of the goods. 22 Cyc. 1081 and cases. But in respect to the guest himself the duty of the innkeeper was only to exercise ordinary care for his safety. Td. 1080. Obligations or duties to another may be imposed by contract, by common-law rule, or by statute. Contract obligations or duties requiring specific things'to be done or omitted can never be discharged by merely showing that the defendant exercised ordinary care but nevertheless failed. 9 Cyc. 625 et seq. The same is true as regards common-law duties or obligations which require some specific thing to be done or omitted. And the same rule applies to statutory duties or obligations. Monteith v. Kokomo W. E. Co. 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944; Deserant v. Cerillos C. *569R. Co. 178 U. S. 409, 20 Sup. Ct. 967; Hayes v. Mich. Cent. R. Co. 111 U. S. 228, 4 Sup. Ct. 369, and cases in Bose’s Notes to this case, vol. 10, p. 799, and vol. 2, Supp. p. 637; Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041; Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185, 124 N. W. 299, and other Wisconsin cases supra; Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563. The common expression is, in an action charging negligence, that the failure to perform a statutory duty owing to another, in consequence of which failure the latter is injured, is negligence per se. But these words are merely expressive of a broader and more general rule of law that where an obligation or duty is due from A to B and the latter is injured in consequence of a breach of that duty and without his fault, a cause of action results. In Stork v. Charles Stolper C. Co. 127 Wis. 318, 106 N. W. 841, the rule is stated as follows:
“It should he remembered that the injury resulted directly from contact with an uncovered gearing, the presence of which was not only unlawful under sec. 1636), Stats. (1898), and therefore negligent, but might also have been considered negligence on the part of the defendant independently of such statute.”
“Negligence may consist in a failure to conform to a specific rule of law or in a failure to act as a man of ordinary prudence would act under the same circumstances. When the act or omission violates a specific rule of law, it is negligence as matter of law.” 2 Oooley, Torts (3d ed.) 1433. Neglect of statutory duties. Id. 1404, 1408.
Nrom these authorities I think it is apparent that where the duty is specific, as in the statute in question, and one to whom the duty is due is injured by a breach thereof without fault on his part, a right of recovery is shown. The statute in question is neither doubtful nor obscure, except as it has "been made so by decisions of this court, where, according to the opinion of the majority, “almost every available phase of the subject has been judicially treated and some of them *570over an! over again, yet the record here shows that there has been some misunderstanding.” To my mind it is not at all wonderful considering the decisions above cited, and the present majority opinion will no doubt add to this misunderstanding. This is not an unfamiliar complaint in this court. Patnode v. Westenhaver, 114 Wis. 460, 90 N. W. 467. The remedy we should apply to ourselves. The statute in question shows that it was passed for the protection of employees engaged in working about or in proximity to belting, shafting, gearing, hoists, fly-wheels, elevators, or drums. Whenever these are so located as to be dangerous to employees in the discharge of their duty they shall be securely guarded or fenced. This imposes an absolute duty but not an absolute liability on the employer. The liability is not absolute or in the nature of insurance, for in order to recover the plaintiff must show that he is within the class intended to be protected, that the gearing, etc., was so located as to be dangerous to him in the discharge of his duty, and that the failure to securely guard or fence was the legal or proximate cause of the injury; and even after all this is established the employer may still escape liability by showing that want of ordinary care on the part of the employee also contributed proximately to cause his injuries. In other words, if both are at fault the whole loss falls on the employee. The question whether or not the gearing was so located as to be dangerous is a question of fact which permits a wide scope of inquiry, and so also is the question whether or not the failure to securely guard was the proximate cause of the injuries. Under the rule of law apparently settled in this state, that it is an essential element of proximate cause that the party sought to be charged ought in the exercise of ordinary care to have anticipated injury arising from such cause, this latter inquiry could be made in the investigation of proximate cause in a case properly raising a doubt on this point. But that question is not here and was not in the West Oase. I prefer to *571pass on this when it is properly presented for decision. "When I proceed to examine the claim apparently pnt forward in the majority opinion, that prior to the decision in the West Case the statute had1 received a similar construction, I am at a loss to understand that opinion. The case of Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, is introduced with the statement: “It seems the court at first was inclined to hold that a violation of the statute establishes negligence creating liability defendable against only by contributory negligence in the ordinary sense.” So it only “seems” and that only “at first,” and then the court did not hold but was only “inclined to hold.” “Seems, madam,” says Hamlet to his mother, “Nay, it is.” This was not “at first,” for Klatt v. N. C. Foster L. Co. is reported in 97 Wis. 641, while Guinard v. Knapp-Stout & Co. Co., which in disregard of later cases became the guide in West v. Bayfield M. Co., is reported in 95 Wis. 482. Surely this court was something more than merely “inclined to hold” that a violation of the statute establishes negligence when it used and approved the following language:
“Absence of the guard was negligence per se. A failure to perform the duty so imposed constituted actionable negligence at the suit of the person of that class injured by the failure of duty without contributory negligence on his part.”
But it is said: “It may be that all who concurred in Klatt v. N. C. Foster L. Co., supra, did not intend to hold that mere failure to comply with the statute was sufficient to create an inference of culpable negligence as matter of law.” We have no way of judging what they intended to hold except from the language used and approved as applied to the questions before the court, and there is nothing in that language to throw doubt upon their intention. Following the statement that it may be that all who concurred in Klatt v. N. C. Foster L. Co. did not intend, etc., there is a reference to and some discussion of Burns v. C., M. & St. P. R. Co. *572104 Wis. 646, 80 N. W. 927, which I do not understand. 'That was a horse case as it now appears in print and not a master and servant case. Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360; Thompson v. Edward P. Allis Co. 89 Wis. 523, 62 N. W. 527; Kreider v. Wis. River P. & P. Co. 110 Wis. 645, 86 N. W. 662; Upthegrove v. Jones & Adams C. Co. Co. 118 Wis. 673, 96 N. W. 385; and Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694, are then discussed-; Rut these cases are relevant only as to whether the defense of .assumption of risk or that of contributory negligence is available and seem utterly foreign to the questions here under consideration. The majority opinion then abruptly takes the final plunge and sets up the standard of Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671, against Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, not to mention the later cases affirmatory of Klatt v. N. C. Foster L. Co. which I have cited above, .and makes the earlier case in effect overrule the later case, always of course with the aid of West v. Bayfield M. Co., supra. If anything were necessary to demonstrate that the West Gase was a reactionary decision, disregarding the later decisions of this court and going back to the old and discredited doctrine of the Guinard Case, this majority opinion in the instant case does so. Here again I am unable- to understand how judges who consider the old law archaic and are filled with human sympathy for the victims of industrial accidents and welcome legislative relief (Driscoll v. Allis-Chalmers Co. 144 Wis. 451, 467, 129 N. W. 401, 408, separate opinion of Winslow, C. J., and Barnes, J.; and Houg v. Girard L. Co. 144 Wis. 337, 352, 129 N. W. 633, 639, separate opinion by Marshall, T.) could take this extraordinary and reactionary course of disregarding late numerous and established decisions in line with the law elsewhere and with the common law and resurrect an old case which had been in effect discredited in this state .and by the consensus of authority elsewhere and endeavor to *573resuscitate it so as to control tire construction of this statute in a way to nullify the statute at the option of employers. Beyond doubt this is honest but nevertheless deplorable inconsistency. I cannot let this pass without protest, however unavailing that protest may be, and I feel convinced that time will justify this separate opinion.
Mr. Justice Keewin, I am authorized to say, concurs in this opinion.