I dissent from the order denying a rehearing. The burden of proof was upon the defendant to sustain its defense that it was Duffy's own fault that the railing was out of repair. In my opinion there was an utter failure to prove that it was Duffy's duty as foreman of a gang of men to hunt for hidden and unsuspected decay in the timbers to which the guard-rail was nailed. The liability to decay in the timbers of any structure is a weakness inherent in the original plan, and if the lapse of time makes it the duty of any one to take the structure to pieces for the purpose of testing the soundness of concealed portions of the timbers I should say that was a duty devolving upon the general superintendent of the plant and not upon the foreman of the operatives. The evidence is that Duffy had authority to *Page 217 direct petty repairs of evident defects, but to hold that he was at fault for not discovering decay in the top of the post to which a particular joint of the hand railing was nailed, is to say that it was his duty on taking the position of foreman to remove the three hundred feet of railing for the purpose of testing the soundness of each one of the thirty posts to which it was nailed — a proposition to which I cannot assent.