(Dissenting). — I am unable to concur because the judgment in my opinion should be affirmed.
*478At the time of the accident appellee had been employed by appellant about nine months. His work was that of a stereotyper, an occupation he had followed a number of years; but during the three or four months preceding the accident he spent a portion of his time in the pressroom learning the work of a pressman, the apprenticeship of which, according- to the testimony, is five years. At the beginning of this three months ’ period, he took the place of the regular assistant pressman, who was discharged, and did that work under the direction of the foreman, Hansen, until ten days before the accident, when the latter went on his vacation and he was placed in charge of the press. He had not worked on a press previous to this time, the duties of a stereotyper and a. pressman being entirely distinct. In fact, he had never before seen a press like the one in question. What he knew about running one he learned during these three or four months from Hansen, his instructor, and it is undisputed that in showing him how to adjust the clips and cleats Hansen always caused the cylinders to be turned by electric power.' Appellee, it is true, knew the press could be turned by hand power, but did not know that it should be so turned when the clips and cleats were being pulled back, unless his own powers of observation gave him such knowledge, because Hansen had not so instructed him either by word of mouth or by example. For several months he had watched Hansen adjust them in this way, never in any other.
Wh.en the accident occurred, appellee was attempting to pull the cleats back exactly as Hansen did; that is, he was doing it identically as he had been instructed to do it by the person under whom he had been ordered to learn the branch of the business of which it formed a part. Yet it is contended, and the contention is upheld, that appellee’s injury was due solely to his own negligence in voluntarily pulling the *479cleats back by tbe use of electric rather than hand power because it was dangerous to use the' one and safe to use the other, and both methods were known to him. It is true that it is more dangerous to adjust the cleats with electric than with hand power; in fact, there is no danger at all attached to the latter, because the cylinders are not moving when the adjustment is made by its use. But whether using electric power for this purpose is so dangerous that no ordinarily prudent person would attempt it does not sufficiently appear from the record that this court should say as a matter of law that the mere selection of that way of doing this particular act constitutes such negligence as to preclude the plaintiff from recovery. We recently said, in Tom Reed Gold Mines Company v. Morrison, supra, p. 281, 224 Pac. 822:
“The mere fact that one selects voluntarily the more dangerous of two ways of doing a thing does not of itself as a matter of law constitute negligence. ‘It is -still a question for the jury,’ says the court in Lewis v. Texas & P. Ry. Co., 57 Tex. Civ. App. 585, 122 S. W. 605, ‘unless the facts proved show the selection of a method obviously more hazardous and under circumstances such as would justify the court in concluding as a matter of law that no person of ordinary prudence would have adopted it.’ Bailey v. Prime Western Spelter Co., 83 Kan. 230, 109 Pac. 791; Headrick v. H. D. Williams Cooperage Co., 97 Ark. 553, 134 S. W. 957.”
Before this principle can be said to be applicable, it must appear that the selection of the unsafe method was voluntary. 26 Cyc. 1189; Hutchison v. Cohankus Mfg. Co. (Ky.), 112 S. W. 899; Fritz et al. v. Salt Lake & O. Gas & Elec. Light Co., 18 Utah, 493, 56 Pac. 90; Colorado Coal & Iron Co. v. Carpita, 6 Colo. App. 248, 40 Pac. 248. Such, however, was not true of appellee’s choice of electric power upon the occasion in question. He had been taught by appellant’s foreman to use this power when adjusting the *480clips and was never directed to nse the other or shown how. He was therefore justified in assuming that it was expected of him that he should use electricity for this particular purpose, for it cannot be that he was taught to do it one way and his employer intended he should do it another, nor should it be assumed that the intention was that he should do it that other way. The only purpose appellant could have had in directing that appellee be taught the work of the pressman was that he might know how to do it himself as well as to see that it was done properly by others who might be under him. If it had been intended that he should use hand power at such times it is difficult to understand why he was not taught that way, since it would have been as easy to teach one method as the other. No other conclusion can be drawn, therefore, than that in using electric power he was obeying the instructions of his employer, and that such method, whether safe or unsafe, was selected by appellant itself and not by appellee. The fact that the instructions were given by its foreman instead of appellant itself is immaterial. The former’s orders, the same as those of the employer himself, were supposed to be followed.
It is argued, however, and this view is upheld in the opinion of the majority, that'the danger of the hand’s being drawn between the cylinders and crushed when the clips were being pulled back by the aid of electric power was so apparent and great that appellee knew, or should have known, that it would probably have been injured if that method was followed, and that he should therefore have refused to adjust the clips in that way, regardless of the instructions of the foreman. The fact, however, that he saw Hansen do it almost daily for several months without any accident, and that Harry Peurriegel saw him do it for more than a year with the same result, shows, to my mind, that it was not so dangerous that this court *481should say, as a matter of law, that appellee’s failure to disobey his instructions and select the other method of adjusting the clips constitutes such negligence as to preclude a recovery by him.. If it were true that appellee had voluntarily adjusted the clips with the aid of electric power, it would still be impossible to say, as a matter of law, that the accident was due to his choice of a dangerous method of performing the act, because voluntary selection by an employee of an unusual and more dangerous way of doing a thing is scarcely distinguishable from contributory negligence; in fact, it is treated as such in many decisions (26 Oyc. 1189), and under the Constitution of this state, contributory negligence is made a question of fact and left to the jury. And the contention that appellee, having voluntarily chosen a dangerous method of adjusting the clips, assumed the risks incident thereto, would likewise fail, even though the doctrine of the assumption of risks applied under the Employers’ Liability Law as under the law of negligence because it, like contributory negligence, is a question of fact for the jury.
The rule by which the conduct of appellee in this case should be judged is thus stated in Reese v. Clark, 198 Pa. 312, 47 Atl. 994:
“In Shearman & Redfield on Negligence (5th ed.) § 186, it is said: ‘ The true rule in this as in all other cases is, that if the master gives the servant to understand that he does not consider the risk one which a prudent person should refuse to undertake, the servant has a right to rely upon his master’s judgment, unless his own is so clearly opposed thereto that, in fact, he does not rely upon his master’s opinion. ... A servant is not called upon to set up his own unaided judgment against that of his superiors; and he may rely upon their advice and still more upon their orders, notwithstanding many misgivings of his own.’ ”
*482And in Patterson v. Railroad Co., 76 Pa. 389, 18 Am. Rep. 412, the court said:
“But where the servant, in obedience to the requirement of the master, incurs the risk of machinery, which though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill, the rule is different. In such case the master is liable for a resulting accident.”
See, also, the following: Texas & N. O. R. Co. v. Kelly, 34 Tex. Civ. App. 21, 80 S. W. 1073; Huhn v. Missouri Pac. Ry. Co., 92 Mo. 440, 4 S. W. 937; St. Louis & S. F. Ry. Co. v. Morris, 76 Kan. 836, 13 L. R. A. (N. S.) 1100, 93 Pac. 153; Brinkmeier v. Missouri Pac. Ry. Co., 69 Kan. 738, 77 Pac. 586; Schroeder v. Chicago & A. R. Co., 108 Mo. 322, 18 L. R. A. 827, 18 S. W. 1094.
In view of the requirement of the statutes of this state, paragraph 3157, Civil Code 1913, that employers in hazardous occupations shall inform their “employees ... as to the duties and restrictions of their employment, to the end of protecting the safety of employees in such employment,” it is difficult to understand why, if they instruct one of their employees to use a less safe method than another, the employee whose duty it is to obey, and not the employer who commands and is supposed to know whether what he directs is safe or unsafe, should be held responsible for an injury suffered by the former as a result of his compliance with the instructions given him. Especially is this true where the facts are such as they are in this case. It seems clear that appellee was justified in relying upon the judgment of appellant’s foreman, and that his act in obeying the latter should be regarded as the act of his employer and not of himself. Reese v. Clark, supra. Hence I am at a loss to .see wherein the accident causing the injury did not arise out of the employ*483ment, the occupation in which he was engaged being admittedly hazardous.
To hold that an employee who performs an act in the line of his employment as he was instructed by his employer, either personally or through another, to perform it, cannot recover for an injury suffered while performing it, is, in my judgment, to give approval to a proposition not sustained by the law; certainly one the mere statement of which shows is far removed from any principle of natural justice. If appellant had failed to give appellee any instructions at all as to the manner of adjusting the clips, the provisions of paragraph 3157, supra, would have deprived it of any defense based upon the negligent manner of performing this act, unless the danger of using electric power was so apparent and great that no ordinarily prudent person would have attempted it even when directed to do so by the employer or his representative. But when appellant complied with the statute and gave the information required, appellee was justified in acting upon it, and I can conceive of no principle of law that would hold him responsible for an injury suffered by him as a result of his action, especially where, as here, it was not so dangerous to do as he was told that the foreman knew he would not attempt it.
The judgment should be affirmed.