ON PETITION FOR REHEARING. Appellant contends, on his petition for rehearing, that the court determined this appeal on a question of fact, when there is no question of fact involved, since the evidence is 4. uncontradicted. He appears to assume that where the evidence is uncontradicted, no questions of fact ever follow, but only questions of law. This is not true. On the contrary, questions involving ultimate facts always arise from uncontradicted evidence where the primary facts established thereby might lead men of equal fairness and intelligence to draw different inferences therefrom. National Surety Co. v. State (1913), 181 Ind. 54; Inland Steel Co. v. King (1915),184 Ind. 284; Pittsburgh, etc., R. Co. v. Dove (1916),184 Ind. 447. *Page 234
It is also contended that, since this is an action under the Employer's Liability Act of this State, in which it is charged that appellant received his injuries while obeying an 5, 6. order of one of appellee's employees, to which he was obliged to conform, that contributory negligence is not a defense, under the following provision thereof:
"No such injured employee shall be held to have been guilty of negligence or contributory negligence where the injury complained of resulted from such employee's obedience or conformity to any order or direction of the employer or of any employee to whose orders or directions he was under obligation to conform or obey, although such order or direction was a deviation from other rules, orders or directions previously made by such employer." § 8020b Burns 1914.
It has been held, however, that this provision of the act does not eliminate contributory negligence as a defense under all circumstances, but that it remains a defense where an employee receives an injury, not from the mere fact that he obeyed the order, but by reason of the negligent manner in which he carried it out. S.W. Little Coal Co. v. O'Brien (1916),63 Ind. App. 504; Jackson v. Pirtle (1920), 75 Ind. App. 336. If, therefore, it be admitted, that the evidence is of such a character, that we can say, as a matter of law, that appellee was guilty of one of the alleged acts of negligence, and it be further admitted that such injuries were sustained while appellant was obeying an order of appellee to which he was obliged to conform, the question of appellant's contributory negligence would still remain, to be determined as a matter of fact, unless the evidence is not only uncontradicted, but of such a conclusive character that the facts established thereby admit of only one reasonable inference in that regard. The evidence, however, is not of this character. If *Page 235 we accept the descriptive evidence of the surroundings, conditions and circumstances under which appellant received his injuries as uncontradicted, the facts established thereby do not show conclusively that appellant's injuries resulted from a conformity to the alleged order, and not from a want of due care in the manner in which he carried it out. The determination of that question was, therefore, one of fact and not one of law. The trial court, we must presume, found against appellant on that question of fact, and, as there is some evidence to sustain such finding, it suffices on appeal, as stated in our original opinion.
The petition for rehearing is denied.