¶1Plaintiff in error brought suit against the defendant in error in the district court of the First judicial district, to recover $25,000 damages for personal injuries re-' ceived by reason of the negligence of the defendant, plaintiff being in defendant’s employ at the time the injuries were received. The evidence tends to show that Harry Stubbs, who is described as a “gang boss,” on the day the injuries were received took the plaintiff and found other employés of defendant to lower an engine. The engine, having been run into the shop for repairs, had been hoisted above the track, and was resting up-' on heavy timbers, the timbers resting upon the rails and above a pit dug under the track, two or three feet deep. All the timbers had been taken from under the engine but one, and Stubbs had previously ordered two of the men away. Plaintiff by order of Stubbs was on the right-hand side of the engine, and the *249two remaining employes were on the other side. While the last timber was being removed Stubbs ordered one of the two remaining employés away, leaving but one, John Estes, holding the timber on the left-hand side. Immediately afterwards the end of the timber held by Estes dropped into the pit,. causing the end held by plaintiff to fly up and strike him under the chin, forcing his head violently against the driving rod and inflicting upon him a serious and permanent injury. A special verdict was rendered in the case, and the foregoing statement of the facts, while incomplete when taken in connection with the special verdict, will be sufficient for the decision of the case. The verdict of the jury was as follows: “We, the jury in the above-entitled cause, do upon our oaths say as to the first cause of action as follows: (1) That the plaintiff, John McBride, was injured at the shops of the defendant, in Cheyenne, on the 27th of November, 1883, and that the injuries there and then received were serious and oermanent. (2) ThatoneHarry Stubbs was at the time above mentioned a * gang boss ’ in the employ of the defendant, and as such ‘ gang boss ’ had immediate control of the men working in the shops of the defendant; he himself being under the general orders of the master mechanic. (3) That said Harry Stubbs had charge of the men engaged in lowering the engine and removing the timbers from under said engine on the day of the accident. (4) That one James Butler, foreman in the employ of the defendant, was present at the said shops on the day of the accident. That the duty of a foreman of the shops was to superintend the work in said shops under general directions of the master mechanic. (5) That one R. McDou-gal, master mechanic in the employ of the defendant, was not present at the shops at the time of the accident. (6) That three men were generally employed to remove the timbers referred to, although two men, — one of them being in the pit under the engine,— could do the work safely. (7) That on the day of the accident, and at the time of the removal of the last timber from under said engine, three were employed in said removal; the plaintiff on the right-hand side of the engine, and Louis Jacobson and John Estes or ‘ Monohan ’ on the left-hand side. (8) That in consequence of an order given by said Harry Stubbs the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also And Louis Jacobson negligent. (9) That the plaintiff was performing his duties with ordinary caution. (10) That the said timber was between seven and eight feet'long, weighed about 180 pounds. That the end of said timber farthest from the plaintiff fell into the pit under said engine, causing the other end to fly up and to cause the injuries to the plaintiff. (11) That if on the facts the finding should be for the plaintiff, we find for the plaintiff, and assess his damages at the sum of twenty-five thousand dollars, ($25,000.) If on the facts the finding should be for the defendant, we find for the defendant.. We find for the defendant on the second cause of action.” No error is assigned on the findingof the jury or the judgment of the court below upon the second cause of action. On the 2d day of July, 1886, the plaintiff moved for judgment in his favor upon the verdict. Subsequently, on the 17th day of July, 1886, the plaintiff entered his motion to vacate the verdict, and for a new trial. July 19th the court overruled both motions. On the same day the plaintiff again moved a new trial, assigning, among other grounds, that the court erred in rendering j udgment for the defendant upon the verdict.
¶2The questions we are called upon to decide are whether the court erred in refusing to grant a new trial upon the motion of plaintiff, and whether the court erred in refusing to render judgment in favor of plaintiff and rendering judgment in favor of defendant upon the special verdict. If the plaintiff is entitled to judgment upon the findings of the jury it is upon the principle that Harry Stubbs was not, in contemplation of law, a fellow-servant of the plaintiff, but was a vice-principal standing in the place of the defendant, by reason of being placed by the defendant in control of a separate matter or department; or that, not being in control of a separate department, he yet was the representative of the common employer, by being placed in charge of the performance of duties upon which depended the safety of the men, and which the employer could not shift by dele*251gating them to a subordinate. Under the facts as found by the jury it is clear that the defendant cannot be held liable for the negligence of Stubbs as a vice-principal in exclusive control of a department. The finding makes it evident that the control of the shops was in the master mechanic, under whose general orders Stubbs had immediate control of the men; that while the master mechanic was not present on the day of the accident, James Butler, the foreman, was present and his duty was to superintend the work in the shops under general directions of the master mechanic. None of the authorities, we believe, go to the length of holding the master liable for the negligence of an employé as vice-principal in control of a department, when there is in the same department, and present at the time of the accident, a superior under whose orders and control such em-ployé performs his duties. There is, however, a class of cases where the employé is the representative of the master, though not in control of a separate department; and where the master is liable for his negligence, not upon any ground of superior rank or grade in the service, but from the character of the service which he is designated to perform. “One of the exceptions to the general rule of the common law that the master is not liable to one employé for the negligence of a co-employé in the same service, arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master.” Railroad Co. v. Fox, 31 Kan. 597, 3 Pac. Rep. 320. Such proper diligence imposes upon the master such duties as to furnish to the men a reasonably safe place in which to work, to furnish them proper and safe machinery and materials with which to work, to exercise reasonable care and diligence in making sufficient regulations for the safe running of trains, so as to avoid injury from collisions, etc., to furnish sufficiently skillful co-employés, and in sufficient number for the safe performance of any particular piece of work in which an employé is called upon to take part, etc.
¶3This brings us to a consideration of the facts as found in the special verdict. The eighth finding recites: " That in consequence of an order given by said Harry Stubbs, the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also find Louis Jacobson negligent. ” This is the only finding which imputes negligence to any one connected with the work in hand; and we think it clear, if the plaintiff can recover at all, it must be upon the ground that Stubbs, exercising the duties of the master in this regard, by his order left an insufficient number of men to do the work safely, and thereby the accident occurred. It cannot be maintained that by the order taking Jacobson away from the work some surprise or confusion among the remaining employés was occasioned, and that the accident thereby occurred, although sufficient force remained to do the work if properly applied. If the finding means that, then the plaintiff cannot recover, for in directing and assisting in the work merely Stubbs is a fellow-servant, and not the representative of the master. Moreover, the jury in terms find that in consequence of Jacobson’s failure to assist the accident occurred. But by the sixth clause of the verdict the jury find “that three men were generally employed to remove the timbers referred to, although two men — one of them being in the pit under the engine— could do the work.” The two findings are inconsistent with each other. The jury finds two men sufficient to do the work safely, and it clearly appears from the verdict that two men — the plaintiff and John Estes — were left to do the work, and yet they find that the accident occurred by reason of the failure of a third man to assist. It may be suggested that in order for two men to do the work safely one of them must have been in the pit under the engine. It may be that this is a legitimate inference from the language of the sixth finding. But, upon the other hand, the jury do not find that one of the men was not in the pit, unless it be conjectured from the language used in the seventh finding. And in any event it would only illustrate the negligence or care with which the work was performed; and in this respect Stubbs does not represent the master, but stands in the attitude of a fellow-servant only.
¶4*253Again, it may be urged upon the other hand that if, as this court believes, there is nothing in the verdict indicating any basis for a recovery by plaintiff except the furnishing of an insufficient number of men for the work, then the finding of the jury that two men were sufficient, and that two men were supplied, would warrant a judgment for the defendant, notwithstanding the further finding that the accident occurred in consequence of a third man being ordered away from the work, and failing to assist. We do not think so. It is true that special findings of fact will control a general finding. But here are inconsistent clauses of the verdict, each being a finding of fact. To strike out one and give effect to the other would be to make a new verdict, which the court has no power to do. Neither are we at liberty to go behind the findings, and resort to the evidence to sustain the verdict, for the effect would be the same. Where the special findings are materially inconsistent, the judgment must be reversed, and a new trial granted. Haas v. Railroad Co., 41 Wis.44; Kearney v. Railroad Co., 47 Wis. 144, 2 N. W. Rep. 82; Burns v. Rolling-Mill Co., 60 Wis. 541, 19 N. W. Rep. 380; Hill v. Covell, 1 N. Y. 522; Manning v. Monaghan, 23 N. Y. 539; Walsh v. Bank, 10 Civil Proc. R. 32. As a new trial will be ordered, we intimate no opinion upon the question whether the plaintiff would, in any view of the evidence as presented in this record, be entitled to recover. Judgment reversed, and new trial ordered.
¶5(dissenting.) At tire last term of this court, and before this cause stood regularly for hearing upon its merits, the defendant in error submitted to the court a motion to dismiss the petition upon the ground that the paper purporting to be a bill of exceptions, and which is attached only to the petition in error, was allowed and signed by the judge of the trial court in vacation, and that the record nowhere outside the alleged bill shows that a bill was allowed. On the hearing of that motion the majority of the court overruled it. 18 Pac. Rep. 635.
¶6Now, the only point intended to be made is that the argument should be carried to its logical sequence. I contend that it is worse than inconsequential to affirm that one statute is the prototype of another in respect of those matters of which the one speaks and the other is silent; but, if so be that despite those differences one must be accepted as the pattern of the other, then the pattern must be made to apply to all points of difference. The Wyoming Code is something more than an adoption of the Ohio Code. Its various provisions, with but few exceptions, are a transcript of the latter. And this fact of itself lends force to the proposition that a judge cannot, out of term, allow and sign a bill of exceptions. By the Ohio Code, and by the identical sections which are cited as the prototype, this power is expressly conferred. In the Wyoming Code there is nc such express delegation of authority. It can be maintained only by an interpretation, which I must conclude is not in harmony with the context. While the rule that statutes in derogation of the common law shall be strictly construed has been abolished in this territory, it is nevertheless a conservative proposition that when a common-law *257procedure or a precedence in the court of common law has prevailed for centuries the statute which abrogates it should be so plainly expressed that nothing is left to disputable inference. Let us, therefore, carefully examine section 2649, Wyoming Code, and determine the mooted question. The clause which first invites attention reads thus: “ The party excepting must first reduce his exception to writing and present it to the court for allowance.” So far this would seem conclusive against the authority of the judge in vacation. But it is held that the next clause extends the limitation, and confers upon the judge out of term equal power with the judge during the term. “If true it shall be the duty … of the judge or court before whom the case was or is being tried, to allow and sign it.” The use, disjunctively, of the words “judge” and “court,” it is thought fully sustains this view. This, however, leaves out of consideration another paragraph of the same section, which expressly confirms to the “court” judicial action on the bill, thus: “If the writing is not true, the court shall cancel it, or suggest the correction to be made, and it shall then be signed as aforesaid.” If the bill is presented for allowance and signature in the vacation of the court, how is it possible for the court to determine whether it be true or false? This duty of determination is not devolved upon the judge in vacation, and the exercise of that duty is plainly a precedent condition to the signing of the bill. So it is that by considering the section in its entirety, rather than in segregated paragraphs, a conclusion is reached which gives effect to it as a whole, and avoids the difiSeulties and contradictions involved in the opposite interpretations. Considering that these embarrassments necessarily arise from that interpretation, it is fairly to be presumed that the legislature, in the use, disjunctively, of the words “judge” and “court,” simply intended to present an alternative of terms implying the same thing, instead of that particular form of alternative which offers a choice of the one thing or the other. Just as, in common speech, we say that a certain instrument is a “deed” or “conveyance,” a certain pleading, a “petition” or “declaration,” or, as in section 3225, where it is obvious that the word “judge” is used synonymously with “court.” The grand jury shall be charged by the judge, and, in the same section “after the charge by the court, the grand jury shall retire.” Or, as in section 2553, “the court shall give such instructions upon the law to the jury as may be necessary, which instructions shall be in writing, and numbered and signed by the judge.” Now, it is certainly unquestioned that the judge in vacation cannot charge the grand jury, and equally so that the judge in vacation cannot number and sign the instructions. It is well understood, even by those who make no pretense to attainments in philology, that in certain connections words may coincide, and so be interchanged, when they cannot be interchanged in other connections. In harmony with this familiar canon, and impressed by the necessity of giving effect to the entire section, I conclude that the words “judge” and “court,” as they appear in section 2649, are the precise equivalents of each other,— identical in use and meaning.
¶7By further examinations of the statutes it will be ascertained that when the legislature Intended that a power or duty should be devolved upon the judge as distinguished from the court, apt words are used to express that legislative intent. Thus, in section 2573, “all issues, by consent of parties, may be refused by the court, or by a judge thereof in vacation.” “Sec. 2574. When the parties do not consent, the court, or the judge thereof in vacation, may refer the issues when the parties are not entitled to trial by jury.” “See. 2887. The court, or the judge thereof in vacation, may appoint a receiver.” “Sec. 2892. The court, or a judge thereof in vacation, may make proper orders for the preservation of property.” “Sec. 2913. The attachment may be granted by the court in which the action is brought, or by the judge thereof.” “Sec. 2921. The injunction may be granted at the time of commencing the action, by the district court, or by a judge thereof.” “Sec. 2932. A party may apply to the court in which an action is pending, or to a judge thereof, or to the supreme court, or to a judge thereof, to vacate or modify an injunction.” “Sec. 3136, subsec. 2. The undertaking shall be in such sum as may be prescribed by a court of record, or by a judge thereof.” “Sec. 3068. The court, or a judge thereof, may make an order for the examina*259tion of witnesses de bene esse. ” These several sections, taken at random, omitting others equally illustrative, sufficiently prove the proposition previously submitted, that when che legislature designed to confer a power or discretion upon a judge in vacation, words appropriate to that end, and of no doubtful import, are habitually employed. Moreover, chere seems to me to be a peculiar fitness in requiring that such judicial action as maybe had in the allowance of the bill should be by the court. The exception is a part of the trial. While it may formally be drawn up after the trial is over, it must be taken at the time the adverse ruling is made by the court, after it is prepared and tendered for allowance. The same tribunal, the same incorporeal, political being which made the ruling, should adjudicate the questions arising on the motion for allowance. To allow, carries with it the idea of determination; to determine, to decide whether the ruling recited in the bill was made; whether the testimony narrated is correctly rehearsed; whether the instructions embodied (if verbal) were given; whether the exception presented was reserved. It presupposes adjudication, in the same sense that is implied in an order which recites that “the court allows a motion,” or “the court allows a claim.” The signature of the judge is one of the evidences of allowance; or perhaps, more accurately speaking, an attestation that the writing which precedes it is true. However metaphysical or even fanciful these reflections may be, and therefore illy adapted to the practical aims of the law, I cannot believe that the practice of signing and allowing bills of exceptions in vacation is founded in a wise policy. The reasons of policy which forbid it do not apply to those orders which the judge is permitted by law to make in vacation. As a rule such orders can be made only on notice to the opposite party, or, if made without notice, they are provisional and take effect only upon the execution of a bond of indemnity. It is not required by law that the party excepting shall give to his adversary notice of the exact time at which he will tender his bill. For this reason the tender and motion for allowance, and the allowance itself, should be in open court, at the place which is designated by law for the court to be liolden. That place every attorney knows, and the public know it. The attorney’s professional duties require him to be there, and he thus has a fair opportunity offered him to be heard against the bill, if objectionable. The experience of every lawyer has taught him that often his client's highest interests depend more upon the vigilance of his attorney in scrutinizing a tendered bill than in guarding his rights during the trial. It is idle to say that the judge is honest' and will not allow errors to creep into the bill. The judge is no less fallible than the balance of mankind. His memory may be at fault, and is, in fact, more at fault than the memory of the attorney who conducts the trial of the cause. It surely follows that if he is permitted by law to allow and sign in vacation, then he may do so at any place within his district, at the court house, at his residence, at an hotel, on the road, in the cars, or in a coal mine. His power is limited only by the imaginary lines of his circuit, and the extent of his vacation. There is absolutely no other restriction. At midday or at midnight, at his meals or on his couch, at church or at the theater, in his office or on his ranch, on the hustings or in the caucus, he may exercise the functions of his exalted station, regardless of environments. To affirm that the legislature ever intended that these things should become possible, solicits our assent to a proposition which imputes to a co-ordinate branch of the government what seems to me to be a disregard of the interests it assembled to conserve.
¶8Entertaining these views, the only proper judgment which I conceive the court can render is to dismiss the petition in error; but since it is held that the record is properly here, I deem it at least not foreign to my duty to express an opinion upon the merits of the cause. Here, again, I am reluctantly enough compelled to differ from my associates. It may be accepted as a correct principle that, when the special findings of a jury are inconsistent with each other the court should award a new trial. The philosophy of this is easily discernible. Inconsistent findings neutralize each other, and therefore leave nothing on which-the court can render judgment. But this rule cannot, as I think, either on principle or authority, be said to have universal application. If *261there be other findings which are not affected by the conflict between those which are inconsistent, and which of themselves and by their own force are sufficient to constrain a judgment the one way or the other, then it occurs to me that the reason of me rule ceases. It may be true that in the case at bar there is an inconsistency between the sixth and the eighth paragraphs of the special verdict, but those findings relate wholly to the question of negligence. The controlling factor in this ease, and that which precedes all other questions, is, was Stubbs the “gang boss,” a fellow-servant of McBride, or was he the representative of the defendant corporation? If the former relation between them existed, it is profitless to investigate further. As between fellow-servants in the same line of service each one is the agent of the other, agreeing to risk the contingencies produced by the neglect of any one of them, and neither is the agent of the master. It was found by the jury that Butler was the foreman in the employ of the defendant, that he was present at the shop on the day of the accident, and that he was subject to the general direction of the master mechanic, who was absent, in superintendence of the work in which McBride was engaged at the time of his injury. On this finding, I conclude that Butler was the alter ego, or the vice-principal, and that only his acts or omissions can make the master responsible under the doctrine of respondeat superior. The mere fact as found by the jury that Stubbs, as “gang boss,” had “immediate control of the men working in the shops,” cannot, in the light of any adjudications to which my attention has been directed, nor in the light of the understanding common to those who have observed such work, be said to invest him with that extended authority necessary to fix his status as a vice-principal. • To say that he had immediate control may in a limited sense imply subordination on the part of those who worked in his gang. But the subordination, as here understood, is not sufficient. There must be, according to my understanding of the weight- of authority, a control in its nature and distinctive features departmental. The conductor of a train, it is said, has a control of this character. In the moving and management of his train his authority is as nearly supreme as that which is exercised by any one who is himself a subordinate. Beneath him in the grade of service are the engineer and brakeman, and, if either one of them is injured by his negligence, the superior is responsible. No such departmental control or extended authority can be said to have been delegated to Stubbs. The master mechanic had the general superintendence of the shops. In his absence Butler, the foreman, was the representative of the common employer. In the constitution of a corporation charged with the conduct or management of multitudinous interests necessity demands that there should be a division of its powers and duties confided to several departments. Each department represents a unit of the organization. It is presided over by one who may be called the chief, who, in his own sphere of authority, is the visible representative of the invisible master. In him the power of control is given. Through him authority is exercised. He is the accredited agent of the principal. For his negligence alone can the principal be held responsible. To carry the doctrine of agency further would be not only to advance the law beyond all known borders, but would establish responsibilities dangerous to the exercise of the most efficient means of commerce. Being thus profoundly convicted that Stubbs, as shown by the verdict, was but a fellow-servant with the person so painfully and so unfortunately injured, the maxim of qui facit per alium is wholly inapplicable. In this view it is immaterial whether Stubbs was negligent or not, or, if he were, in what degree, and therefore equally immaterial whether the findings of the jury on this issue were consistent or otherwise. All ulterior inquiry is precluded by the finding that the master mechanic or the foreman had departmental control. I am therefore of the opinion that if the case were properly here the judgment of the district court should be affirmed.
¶9 Ante, 183.