(on motion for rehearing). In this case motions for rehearing were made by both appellant and respondent. Respondent’s motion for rehearing was denied February 4, 1930. On the same date the appellant’s motion for a rehearing was granted, for a reargument (1) Upon the general scope and purpose of sec. 101.06, Stats., with special reference to the question of whether it relates merely to the physical elements involved in an employment or place of employment, and whether it imposes a duty upon the employer to warn the employee of dangers incident to the work in addition to the duty imposed upon the employer in such respect by the common law. (2) Whether, if the only duty imposed upon the defendant to warn the plaintiff in this case was that of the common law, the issue was properly submitted to the jury by the special verdict in this case so as to justify the rendition of judgment thereon.
A reargument of these questions convinces us that the view expressed in the opinion, to the effect that sec. 101.06 relates only to the physical aspects of a place of employment, is too narrow and erroneous. Our attention is called to the fact that the bill as originally introduced in the legislature, eventuating in sec. 101.06 and associated sections of the statutes, dealt only with places of employment and devices and safeguards reasonably adequate to protect the life and limb of employees or frequenters of such places of employment and the premises connected therewith, but that, by the substitute amendment, the entire scope of the law was materially broadened. The manner and extent of such enlargement is sufficiently illustrated by a comparison of sec. 11 of the original bill with sec. 11 of the substitute amendment, which now constitutes sec. 101.06 of the Statutes. The original bill provided as follows:
*90“Every employer shall furnish a reasonably safe and hygienic place of employment for employees therein and for frequenters thereof, and shall furnish safety devices and safeguards reasonably adequate to protect the life and limb of every employee in or frequenter of such place of employment and the premises connected therewith, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of the employees therein and the frequenters thereof.”
Sec. 11 of the substituted amendment provided as follows :
“Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and place of employment sa.fe, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters.”
The substitute amendment introduced into the bill the requirement that not only the place of employment shall be safe for employees, but that the employment itself shall be safe, and that the employer shall adopt and use such methods and processes not only reasonably adequate to render the place of employment safe, but also reasonably adequate to render the employment safe. It thus appears that while the original bill was limited to. requirements which would make the place of employment safe, the substitute amendment required the employment as well as the place- of employment to be safe.
It is- apparent that “safe employment” is broader in scope than a safe “place of employment.” In fact, safe employment necessarily requires a safe place of employment. By introducing into the bill the element of safe employment, it is obvious that the legislature not only intended to but actu*91ally did broaden the scope of the subject matter with which it was dealing, and when it required the employer to “do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters,” even the doctrine of noscitur a sociis cannot restrain the meaning of such words to the physical aspects of the place of employment alone, because the dominant subject in connection with which such words are used is employment which shall be safe rather than a mere place of employment which shall be safe.
A moment’s reflection will indicate that a safe employment may require something besides a place of employment that is safe in a physical sense. 'To illustrate, it is not inconceivable that to render safe the employment of a track repairer in switching yards may require a warning of the approach of switching engines and cars. This has no relation to the physical conditions under which he is working, but may be absolutely necessary to make his employment safe. Safety of employees working upon a building where materials are being hoisted and moved about may require signals to advise them of and to guard them against movements dangerous to them of which they would not otherwise be apprised. Illustrations such as this could'be multiplied to indicate that under myriad situations safe employment calls for something in addition to a safe place of employment in a physical sense.
We are satisfied that the injunction laid upon employers to “furnish employment which shall be safe for the employees therein,” to “use safety devices and safeguards,” to “adopt and use methods and processes reasonably adequate to render such employment safe,” and to “do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters,” cannot be limited to the inclusion of mere physical situations. We *92therefore hold that this statute does impose upon employers the duty to warn employees of dangers incident to their employment, not absolutely, but when it is “reasonably necessary to protect the life, health, safety and welfare of such employees.”
«This duty may or may not be the same as the duty imposed at common law to warn employees of dangers incident to their employment. This we do not attempt to analyze because, whether the rule be the same or not, it is now embodied in statutory language and requires such warning when “reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters.”
In submitting those questions of the special verdict by which the jury found that the defendant failed to warn the plaintiff and that such failure, was the proximate cause of his injuries, the jury were told “that it is the duty of employers to warn their employees of any dangers known to the employers or reasonably to be apprehended by the employers that are incident to the employment of such employees.” This is not the duty which the statute imposes upon the employer. He is required to warn only when it is “reasonably necessary to protect the life, health, safety and welfare of such employees.” Although our conclusion rests upon somewhat different considerations, it still appears that that portion of the special verdict upon which the liability of the defendant is predicated was not properly submitted to the jury, and our former mandate must be confirmed.
In their brief in support of their motion for rehearing appellant’s counsel ask leave to amend the complaint by setting-up the negligence of the fellow-servant who pulled the truck which Miller was pushing. We have no power to entertain this motion. It will be proper to make that motion in the trial court when the record is remitted to .that court.
The fact that our mandate results in a new trial makes it *93unnecessary for us to consider whether the case should be remanded with an opportunity to the trial court to grant a new trial in the exercise of discretion. Our consideration of the subject, however, leaves some doubt as to the power of the trial court to grant a new trial for such reasons in view of the fact that sixty days have elapsed since the motion was made, and by the provisions of sec. 270.49 the motion in that behalf is to be deemed denied. This provision of the statute seems'to strip the trial court of power to pass upon such motions after remittitur of the case from this court. Although such power was apparently assumed in Borowicz v. Hamann, 189 Wis. 212, 221, 207 N. W. 426, we are disturbed as to its correctness. This power should not be left in doubt. The subject seems to be an appropriate one for the consideration of the Advisory (Rules) Committee.
By the Court. — Original mandate confirmed.
On June 23, 1930, a motion by the respondent that appellant’s motion for a second rehearing be dismissed was granted, with $25 costs.