BROWN, C. J.
Plaintiff in error, a private corporation, was engaged in operating a lumber mill, and R. F. Cooper, the husband of Clara Cooper and father of the other defendants in error, was on the 11th day of November, 1907, in the employ of the said corporation, and on the date named was killed while engaged in the services for which he was employed. This suit was instituted in the district court of Morris county against the plaintiff in error to recover damages for the death of said Cooper. The district court gave judgment against the plaintiff in error
which was affirmed by the honorable Court of Civil Appeals. The ground of negligence was alleged as follows: "The ground of negligence submitted by the court to the jury is alleged to be the act of appellant's foreman, a vice principal, in knowingly directing an incompetent and inexperienced person ignorant of the character and use of the machinery about and amidst which he was instructed to work and come in contact to go underneath the floor and unscrew the end nuts and bolts of the broken floor plate which the deceased at the time on the first floor was endeavoring to repair. It was alleged that while the person, as directed by the foreman, was endeavoring to do the work assigned him, and while necessarily climbing around to do such work, came in contact with the end of the lever next to the valve which operates the loader, and thereby let steam escape into the cylinder and operate the arms of the loader, and throw a heavy gum sawlog which was on the loader at the time upon the deceased, killing him."
The facts, in substance, are: "E. B. Wilson at the time was the foreman, having authority from, and charged with the duty by, appellant to direct and control and have full charge and supervision of the operations and work of all the other employés at the mill, and to employ hands and to discharge hands, but subject to the disapproval of the president of the company. This plant was made up of modern and complicated machinery propelled by steam. Among the contrivances used to save labor and accelerate its business of manufacturing lumber were a steam loader and steam tooth bar, called in the evidence a `nigger.' The former (the loader) was made up of, among other things, a number of arms, or standards, attached to a shaft which rested alongside, near, and parallel with the saw carriage track, at the foot of an inclined plane, called a `skidway.' The arms or standards normally stood rigid and upright, and were used to catch and hold logs which rolled down the skidway and to keep them from rolling on the carriage or carriage track until such time as in the operation of the mill a log was needed upon the carriage, when, by means of the application of steam power to the machinery in part making up the construction of the loader, the arms, or standards, were lowered and the log rolled on to the carriage. The steam nigger consisted of an upright bar provided with teeth, which worked upward and downward through the floor, and near the carriage track, and between the carriage track and loader, was propelled by steam power, and used for turning and adjusting logs while being sawed, after they had been placed upon the carriage. The machinery by which these instrumentalities were operated was situated underneath the floor upon which rested the carriage track, and the steam used in its operation was applied through valves to which levers were connected; the steam, by means of the valves, being allowed to pass into cylinders. One of such cylinders operated the loader, and two others operated the nigger. The levers connected with the steam valves, at least the loader levers, were, in turn, connected with uprights which protruded a short distance through the floor at the sawyer's stand and were provided with stirrups, so that steam could be applied to the loader or nigger by slight pressure by the sawyer's or operator's foot. The machinery which made up the construction of these instrumentalities was complex, and the relation of one part to another was nicely adjusted, and it was capable of being quickly and easily operated by means of slight pressure applied to the levers through the uprights projecting through the floor at the sawyer's or operator's stand. Steam was applied to the machinery operating the loader by means of a lever about 16 feet in length which was suspended underneath the floor from a fulcrum about its center. One end of the lever was attached to a valve through which steam escaped into the cylinder operating the loader, while to the other end was attached an upright protruding through the floor, to which was attached a stirrup as a means of its operation. The arms, or standards, were lowered by the application of steam power, and upon relaxation of the pressure assumed and retained a normal rigid and upright position. This lever was above and about four feet back from the rear, and about seven feet from the front nigger cylinder. On the day of the injury in suit the floor plate of the tooth bar, or nigger, broke, and Wilson, the foreman of the mill, as was his duty, caused the mill to be shut down, and not longer for the time operated, and called and directed the deceased, as was his duty, to repair it. At this time a large gum sawlog was resting in the arms of the loader, and deceased, as was the proper way for the performance of his duty, stooped down between the log, which was about two feet distant in front of him, and the carriage track, to make the repairs, and was unscrewing the nuts from the bolts on the floor plate. Deceased had taken out two bolts and had started to take out another when Wilson, the foreman, directed Ned Barlow, an employé of the mill, to go below the floor and unscrew the nuts from the ends of the bolts which were underneath, and Barlow obeyed the instructions of the foreman. Barlow was a block setter at the mill, but was not a machinist, and, according to his own evidence, did not know anything about machinery, and had never before done that particular kind of work in such place as directed, and did not know how those levers operated when he went down under there, and did not know that, if he came in contact with any of those levers, it would throw the steam on, and did not know at that time what effect it would have to touch any of those levers, and did not know anything of
the machinery that was down under that place. While deceased was sitting on the edge of the log deck and stooping over removing the last nut from the floor plate, the cylinder operating the loader suddenly took steam, and threw the log from the deck on him before he could move out of its way, thereby instantly causing his death. The evidence is sufficient to warrant the inference and finding, which is involved in the general verdict of the jury, and which we assume, in support of the verdict, to be true, that Ned Barlow, while doing the work assigned him by the foreman, in moving his position from one place to another underneath and in necessarily swinging around a post to get in position to do his work underneath, struck his shoulder against the end of the lever next to the valve which operates the loader, and thereby let steam escape into the cylinder and operate the arms of the loader and throw the log upon deceased. Wilson, the foreman, at the time he sent Barlow beneath among the machinery, knew, it appears according to his own testimony, that Barlow was not a competent and experienced person to do such work among such a complex and delicate situation of machinery as was there and of which Wilson knew."
The action is based upon this proviso of article 3017, Batts' Ann. Civ. Statutes, as follows: "An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: (2) When the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another." Since at common law this action could not have been maintained against a natural person, nor against a corporation, it follows that the judgment must be tested by the terms of article 3017, above copied. We are so accustomed to consider like questions under the law which makes the employer responsible for the negligence of the servant that it will aid in the solution of the various questions which are involved to determine first the extent of responsibility under this statute of the person for the acts of others by which death is caused.
Does the rule respondeat superior apply in this class of cases? We here copy the entire article 3017:
"An action for actual damages on account of injuries causing the death of any person may be brought in the following cases:
"1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, hirer of any railroad, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents; when the death of any person is caused by the negligence or carelessness of the receiver or receivers or other person or persons in charge or control of any railroad, their servants or agents, and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery or other reason or cause by which an action may be...
