danger was in the place itself, and not from some temporary and immediately dangerous thing which a fellow-workman might do resulting in injury because he failed to warn. That case was disposed of on the theory that it was in the first instance the duty of the defendant to make the place safe; that plaintiff had been assured that this would be done; and that the captain, shift boss, and others over him were designated as vice principals charged with the nondelegable duties to watch, inspect, and see that it was kept in safe condition, and, proper inspection not having been made, their default was that of the master. The Oiva Case involved the question of a safe place in its physical features. The case was submitted to the jury under a lengthy charge, and a verdict rendered for defendant. Errors assigned and considered related to the charge of the court. These were carefully reviewed in detail, and the charge sustained as correctly covering the issue involved, which was stated by the court to be as follows:

"What the plaintiff claims, in substance, is that he was not furnished a safe place in which to work, and a further claim that he was set to work in an unsafe place upon an assurance that it was safe. Assuming that he himself exercised proper care, he was entitled to recover if he established either proposition. * * * The court, whether it was necessary or not, seems to have had in mind the rule that, where a duty is assumed by the master, or is imposed upon him by contract, or is customarily performed by him, it becomes a nondelegable one."

We find nothing in the cases cited controlling here; no complaint is made in the instant case that the place where the plaintiff worked was, as to its physical conditions, an unsafe place in itself. So far as shown, it was safe, and would have continued so but for the fact that Reily, a fellow-servant, made it unsafe for a brief period by rolling down a stone, which might have been easily avoided if he had given proper

warning, as was his duty. Not the condition of the place itself, but his neglect to give warning according to rule and custom, was the culpable delinquency. No duty of inspecting, to keep the place itself safe and in repair, is involved here. No inspection of the place would disclose a probability or possibility that Reily would at any time default in his duty to give warning.

From cases to which we have already referred and others of like import, it must be taken as the settled rule in this State that the master who has provided a safe place, proper appliances, and competent employees fully instructed as to their duties, and has established proper rules and regulations for safe conduct of the business which are made known to them, is not liable for the negligence of an employee failing to notify a fellow-servant of a transitory or temporary danger caused by his acts which will for the moment render the environment unsafe, but which can easily be avoided by a due warning it is his duty to give under rules of which all interested employees have knowledge.

The negligence of a workman to give warning of some act about to be done by him, and which may be dangerous to a fellow-servant, does not come within the scope of the safe place or duty to inspect doctrine in this jurisdiction.

"Frequent attempts have been made to bring the negligence of fellow-servants deputed to give signals within the scope of the principle that the duty to maintain a safe place of work is nondelegable. But this contention is rejected (except in Washington, where a servant who has been designated to give signals which control the movements of machinery is, while so acting, held to be doing the work of the master)." 4 Labatt on Master and Servant (2d Ed.) § 1537.

In Mikolojczak v. Chemical Co., 129 Mich. 80 (88 N. W. 75), it appeared plaintiff was injured while

working with others at undermining and breaking down a large quantity of salt in defendant's plant. At certain times employees went upon the top of the salt pile above where others were at work, and, with bars or wedges, broke off large masses amounting to several tons, which would fall forward upon the floor. It was a regular custom for the men who went upon the top and did that work to give warning when ready to break down the pile. A foreman was in charge of the work going on there, and the negligence claimed was his failure to see that such warning was given at the time of plaintiff's injury. The court there said:

"The defendant had performed all the duty the law required of it in providing a competent man to attend to the duties of yard foreman, and to direct and assist its employees in the performance of the labor for which they were employed"-holding that the negligence was that of a fellow-servant.

However persuasively authorities cited from other States may be urged and argued, they cannot be indorsed in disregard of the settled rule in this State, established by a series of decisions extending over many years. We are impelled to the conclusion that the learned circuit judge correctly found and charged, as a matter of law, that, under the controlling decisions of this State, the negligence complained of was that of a fellow-servant, for which defendant could not be found liable.

The judgment is affirmed.

BROOKE, C. J., and MCALVAY, KUHN, STONE, BIRD, and MOORE, JJ., concurred. OSTRANDER, J., did not sit.

PENNSYLVANIA FIRE INSURANCE CO. v. ANN ARBOR

RAILROAD CO.

1. APPEAL AND ERROR-INSURANCE-FIRE-RAILROADS.

In determining whether the evidence of plaintiff, who brought an action for the negligence of defendant railroad company in setting fire to his house, made out a case for the jury, the testimony must be considered in the light most favorable to him, irrespective of any evidence in defendant's behalf tending to contradict it.

2. INSURANCE-FIRES-RAILROADS-NEGLIGENCE.

Testimony in behalf of plaintiff, who charged that defendant negligently set fire to his house, was sufficient to require the court to submit the case to the jury where it tended to show that the defendant railroad company occupied land 46 feet away from plaintiff's house; that the season had been dry; that immediately preceding the commencement of the fire a switch engine had been passing along the track near the house and that the wind blew considerable quantities of smoke from it to the dwelling; that there was no fire in the house and that the roof was ignited upon the side toward the railroad track from which direction the wind was blowing; other evidence tending to connect the engine with the fire and the testimony having a tendency to show that the spark arrester in the smoke stack had become defective and had been patched; although defendant's inspector gave evidence that the spark netting was in good order before the fire.

3. SAME-EVIDENCE-SETTING FIRES.

The statute relating to the liability of railroad companies where a fire is set by its locomotives (2 Comp. Laws, § 6295; 3 How. Stat. [2d Ed.] § 6649), changes the burden of proof and shifts the same upon the defendant so as to require it to show that the engine was properly equipped and netted.

4. EVIDENCE-RAILROADS OPINION EVIDENCE-EXPERT TESTIMONY. Upon the trial of an action for negligently setting fire to

a house the trial court was not in error in admitting in

evidence the testimony of an engineer of about 13 years' experience, to the effect that an engine properly equipped would not throw sparks of sufficient vitality to set a fire at the distance at which plaintiff's house stood from the track, though the witness qualified his statement on cross-examination by an admission that dry weather would add to the vitality of the spark and that in times of drouth it would be possible for a spark of sufficient vitality to set a fire to escape through the netting.

5. TRIAL EVIDENCE-EXCLUSION OF TESTIMONY.

The exclusion of reports of an inspection made by defendant's inspector immediately before and after the date of the fire tending to show that the locomotive which it was claimed had caused it was in proper condition, which were excluded by the court with the statement that counsel might present the point later, where counsel did not again bring the matter up for final ruling, did not constitute reversible error though the exhibits might properly have been admitted.

Error to Gratiot; Searle, J. Submitted November 6, 1914. (Docket No. 139.) Decided March 17, 1915.

Case by the Pennsylvania Fire Insurance Company against the Ann Arbor Railroad Company for negligent operation of its locomotives and the setting of a fire. Judgment for plaintiff. Defendant brings error. Affirmed.

Gustavus Ohlinger (Alexander L. Smith, of counsel), for appellant.

Arthur P. Hicks and Charles H. Goggin, for appellee.

STEERE, J. On September 1, 1908, plaintiff insured for a term of three years the so-called Amanda M. Hicks frame residence in Alma, Mich. On February 2, 1910, a second policy was issued by plaintiff providing for $500 additional indemnity on the house and $900 on its contents. Near midday of July 11, 1911, the house was damaged by fire. Before an adjustment