(dissenting). The chain in use was offered in evidence and sent to this court as an exhibit. What was claimed to be the broken link was also sent, although there is some dispute in the evidence about its identity. Whether *616the right link was sent or some other is not very material. A part of the .chain appeared to be comparatively new and little worn. Another portion of it appeared to be old and worn. Whether it was old or not there is no disputing the fact that it was very badly worn and showed the effect of much use under a heavy strain. Some of the links were so embedded into each other that appearances would indicate that their diameters at the point of contact had been reduced so that they were not more than half what they originally had been. It is safe to assume that the chain gave way at its weakest point.
There was no room for the jury or for any one else to say that the nature of this work was such that it would not reasonably permit the use of a heavier chain or of one that was not badly worn or one that would have stood the test to which the broken chain was subjected. Neither was there room for reaching a conclusion that the breaking of the chain was not the proximate cause of the plaintiff’s injury. I think no member of the court would disagree with any statement so far made.
The court takes the position that if the chain was in such condition that it would not break if the work was carried on in the customary manner or in the manner in which an ordinarily prudent man might reasonably anticipate that it would be carried on, then it was as safe an appliance as the nature of the employment would reasonably permit within the meaning of the statute. If this be the correct interpretation of the statute, then I concede that there was some evidence to support the verdict and that the judgment should be affirmed.
I cannot and do not agree to any such construction of the statute, because I believe that it is contrary to its plain words and to our former decisions and to the ideas that were finally crystallized and embodied into our statute law. That ch. 50, *617Laws of 1911, and its supplement, cb. 485 of the same year, were intended to provide an entirely new scheme for compensating injured employees, .cannot be gainsaid. The old method had long been tried and was found to be illogical and unjust. It was not the purpose of the lawmakers that the two systems should run side by side. With the decision of the New York court of appeals in the Ives Case [Ives v. South Buffalo R. Co. 201 N. Y. 271, 94 N. E. 431] staring it in the face, the legislature shrank from passing a compulsory law, but it certainly did intend to change existing law so that employers would be at least as well off under the Compensation Act as they would be by refusing to take advantage of their option. So the 1911 Statutes proceeded to abolish the defenses of assumption of risk and negligence of a fellow-servant and at the same time to impose a higher degree of care on the master than he was before bound to exercise. These statutes not producing the results desired, in 1913 the defense of contributory negligence was abolished, leaving but two defenses in this class of eases, — no negligence on the part of the master and wanton or wilful misconduct on the part of the employee which contributed to his injury, the latter defense being available under the Compensation Act also.
If we read these statutes in the light of what was common knowledge when they were passed, there is very little force in the argument that the legislature could not have intended that appliances should be strong enough to stand the test of unusual contingencies because such a requirement would be unreasonable. What the legislature aimed to do was to sweep all employers not in the excepted class under the Compensation Act, and it was not much concerned with the inconvenience those who chose to stay out might suffer.
Eor our old acquaintances “ordinary care,” “reasonably safe place in which to work,” and “reasonable anticipation” there was substituted a plain duty, — the master was obliged *618to furnish a safe place for the servant to work in (sec. 2394— 48), and “safe” was defined to be “as free from danger as the nature of the employment would reasonably permit” (sub. (11), sec. 2394 — 41, Stats. 1913). This was made the test of the master’s negligence. In every case tbe inquiry should be: Was the place as free from danger as the nature of the employment would reasonably permit? I think the former common-law rules have no place in the administration of this statute. Sec. 1636y, which required dangerous machinery to be guarded, was repealed in 1913, obviously because it was thought that it no longer fulfilled any useful function because of .the enactment of sec. 2394 — 41 and sec. 2394 — 48.
I think that if a man in the course of his employment is injured by an improperly guarded machine, or in any other way, and the physical situation is such that the place of work might be made safe without undue interference with the carrying on of the work, then the master is negligent, and the question of whether he could reasonably anticipate that an injury might happen, or whether he exercised ordinary care in providing a safe place, is immaterial. I think the words “place of employment” refer to the physical situation.
The decision, it seems to ine, practically gets us back to the common-law rule that where the master exercises ordinary care in providing for the safety of the employee he has performed his full duty.
When ch. 485, Laws of 1911, was first before the court for .consideration, it was certainly thought that it materially changed existing law. It was said: “The statute in unequivocal terms requires the employer to furnish employment which shall be as safe for- the employees as the nature of the employment will reasonably permit.” And further: “This language leaves no room for construction, or question as to legislative intent.” Sparrow v. Menasha P. Co. 154 Wis. 459, 465, 143 N. W. 311. If we interuolate into the statute *619the rule of ordinary care or of reasonable anticipation, then we did not bave tbe plain statute we thought we had, because we are not giving the words of the law their plain ordinary meaning, but are assuming that the legislature intended something more than the words used imply, and we are finding “room for construction” and “question as to legislative intent.”
In the next case involving these statutes the court held that they made “some radical changes in the common law,” and that the “safe place” spoken of undoubtedly referred to the “physical situation.” It was held that the duty was absolute to make the place of employment as safe as the nature of the employment would reasonably permit. Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650. Now the question of reasonable anticipation or ordinary care is not involved in the performance of an absolute duty, and it was said in the Rosholt Gase that the duty to furnish a safe place under the 1911 law was not different from that imposed on railroads by the fencing statute (sec. 1810), as construed in Curry v. C. & N. W. R. Co. 43 Wis. 665, 674, and Ulicke v. C. & N. W. R. Co. 152 Wis. 2-36, 139 N. W. 189, and at least as great as that imposed by the scaffolding statute (sec. 1636—81, Stats., 1911), as construed in the Koepp Case, 151 Wis. 302, 313, 139 N. W. 179. If the case presently before us is correctly decided, then I think the Rosholt Gase was not correctly decided.
In the subsequent case of Langos v. Menasha P. Co. 156 Wis. 418, 424, 145 N. W. 1081, that part of the opinion in the Rosholt Gase which holds that the absolute duty exists to furnish as safe a place as the nature of the employment will reasonably permit is quoted and approved.
The Rosholt Gase is again approved in Besnys v. Herman Zohrlaut L. Co. 157 Wis. 203, 209, 147 N. W. 37, and again in Mayhew v. Wisconsin Z. Co. 158 Wis. 112, 118, 147 N. *620W. 1035, and tbe rule of law as announced in tbe Rosholt Oase is reiterated in Sobek v. George H. Smith S. C. Co. 158 Wis. 517, 149 N. W. 152.
I cannot reach tbe conclusion that a duty to furnish as safe a place in which to work as the nature of the employment will reasonably permit is performed when the employer furnishes as safe a place as he can reasonably anticipate will be necessary. One is an absolute duty and the other a qualified one.
I do not read the cases cited in the opinion as being in conflict with what was decided in the Rosholt Case. The Montevilla Oase (153 Wis. 292, 141 N. W. 279) was decided without any reference being made to the 1911 statute, which was first called to the court’s attention when the Sparrow Oase was decided. It simply holds that there is no duty to warn where the master cannot reasonably anticipate that injury may happen. Applying as it does to the physical situation, the law of 1911 imposed no greater duty to warn than existed before. The common law was left intact in reference to the master’s duty in this regard.
The Kendzewski Case (156 Wis. 452, 146 N. W. 516) arose under sec. 1636—81, Stats., which required the runway in question to be safe, suitable, and proper so as to give proper protection to life and limb. It was said, as in the Koepp Case, that the duty was absolute, but that it did not require that the place be made so safe that an employee could not be injured. It was further said that “safe” in the statute involved meant safe, suitable, and proper so far as human foresight, studiously applied, could make the place. The place must be so safe as to render personal injury so remote as to be merely within the realm of possibility. Tested by this rule, I think the master was negligent here. But the opinion continues: “The legislature has gone still further under the Workmen’s Compensation Act; . . . but we are dealing with the particular statute applicable to the situation *621in question.” Tbis reference to that act was no doubt due to the decisions that had already been made under it.
I think that the answer to question 1 of the verdict should have been changed from “Yes” to “No,” and that question 2 should have been answered “Yes,” and that judgment should havp been rendered on the verdict as amended for the plaintiff for the amount of damages awarded by the jury. 1
SiebecKek, J. I concur in the foregoing opinion of Mr. Justice Bap„Nes.A motion for a rehearing was denied, with $25 costs, on May 4, 1915.