delivered the opinion of the court:
This was an action by appellee to recover damages for the death of her husband, due, as it is alleged, to the negligence of appellant. From a verdict and judgment for appellee is this appeal.
The negligence charged was the location and maintenance of a mail crane in unnecessary and dangerous proximity to the road of appellant, and in the failure to notify deceased of such dangerous proximity.
The answer denied the alleged negligence, and averred contributory negligence.
• At the close of the evidence for appellee, appellant moved a directed verdict; this was denied.
1. Appellant says there was error in this ruling because of the absence of evidence tending-to show negligence. Deceased was employed as a fireman on a mail train running on the road of appellant. As the train was going through a station, and after it had passed the depot and signal board, but some feet before it had reached a mail crane located about 180 feet north of the station, deceased projected his head from the window of the engine cab and looked back, and while so occupied his head came into collision with the extended arm of the crane, causing the fatal injuries complained of. At the time of the accident the mail sack was suspended from the arm of the crane. .
' When the motion for a directed verdict was made, the evidence tended to show that the crane in question was located so near the track that when its arms were extended for suspending the mail sack an arm came within 4^- inches of the window of the .cab of the engine. Also that the crane was located from 13 to 20 inches nearer the track than was neces*543sary to its efficient operation, and that, therefore, the end of the arm was from 13 to 20 inches nearer the cab than was reasonably necessary. Alsoothat such unnecessary nearness of the crane was the proximate cause of the accident. There was also evidence tending to show that cranes of similar construction on other roads were located so as to bring the end of the arm not nearer than from 17 to 23 inches to the window of the cab, and that such cranes accomplished efficiently the purposes of their construction.
To sum up, the evidence at the close of appellee’s case in chief tended to show that appellant was guilty of negligence in having located its crane unnecessarily near the track, that thereby it unreasonably and unnecessarily endangered the lives of its employees, and that such unnecessary proximity of the crane was the proximate cause of the death of the deceased.
The law applicable to such a state of the evidence has been announced in what is known as the “mail crane cases.”
In C. B. & Q. R. R. Company v. Gregory, 58 Ill. 272, decided 1871, a fireman was killed by collision with the arm of a mail crane; the negligence charged was the unnecessary proximity of the crane to the track; there was evidence that the crane was located nearer the track than reasonably necessary for its efficient operation, and that the fatality was due to such unnecessary proximity. The court held the defendant liable because guilty of negligence in unreasonably endangering the lives and safety of its employees by locating the crane unnecessarily near the track. It further held that the court was right in submitting to the jury a defense of contributory negligence.
Sisco v. L. H. R. R. Company, 145 New York 296, decided 1895, was an action to recover damages *544for fatal injuries sustained by a brakeman through collision with the arm of a mail crane. Deceased, while climbing a ladder on the outside of a box car, to set a brake, came in collision with a mail crane. The undisputed evidence was that the clearance between the end of the arm and the car was 12 inches; that the crane would not operate if further removed; that the crane was identical in construction and relative location to the track with other cranes along the line of the road. The judgment for plaintiff was reversed, because it had not been shown that the defendant was guilty of negligence, that is, it had not been shown that by the exercise of reasonable care, defendant could have rendered the appliance less dangerous and retained its efficiency, by its location further from the track.
In International & G. N. R. Company v. Stephenson, 54 S. W. (Court of Civil Appeals, Texas) 1086, decided in 1899, an engineer was struck by a mail crane, the charge was negligence in locating the crane too close to the track. The evidence showed the arm of the crane came within 10 inches of the cab of the engine, that the arms of other cranes on the road did not come nearer than from 17 to 19 inches, that the crane would operate efficiently when so located that the extended arm cleared the cab by from 17 to 19 inches. On the principle that the defendant was guilty of negligence in locating the crane unnecessarily near the track, a verdict was upheld. The question of assumed risk, it was held, was properly put to the jury, because, said the court, it could not declare as a matter of law that the plaintiff knew how dangerously near the arm of the crane came to his cab, nor was such fact obvious.
Mallott, Receiver, v. Laufman, 89 Ill. App. 178, decided in 1899, was an action to recover damages for fatal injuries sustained by a fireman through col*545lision with a mail crane. The crane on account of being out of repair leaned unnecessarily near the track. Liability was declared because of the negligence in permitting the crane from lack of repair to incline too near the track.
L. & N. R. Company v. Milliken, Adm. 51 S. W. (Ky.) 796, decided 1899, was to recover for fatal injuries sustained by a brakeman. There was evidence that the arm of the crane came 8J inches nearer the car tiran was necessary for its efficient operation, or than was the case with other cranes on the line of defendant’s road. This unnecessary proximity of the crane was due partially to its being out of repair, and partially to its being located too near the track. The court, inter alia, said:
“We cannot under this evidence, say that he failed to show that the defendant might, by the use of reasonable care, have accomplished its purpose, and at the same time protected its employee from the injury. There was therefore sufficient evidence of negligence to submit the case to the jury, and the court did not err in refusing to give the peremptory instructions asked for.”
The judgment below for plaintiff was reversed but not because of an absence of proof of negligence in the location and maintenance of the crane. A defense of contributory negligence, it was held, was for the jury.
Brown v. New York Central & H. R. R. Co., 59 New York Supplement 672, decided in 1899, affirmed, court of appeals 60 N. E. 1107, was an action to recover for fatal injuries sustained by a fireman from collision with a mail crane. Because of negligence in the crane being located nearer to the track than was necessary to its efficient operation, and because it leaned towards the track through being out of repair, defendant was held liable. As to the de*546fense of contributory negligence-, the court said it was a question for the jury.
In Kennedy v. Meddaugh, 118 Federal (Cir. Ct. of App.) 209, decided 1902, a fireman was killed hy collision with a mail crane. The distance between the outer end of the arm of the crane and the car was 13-1 inches.' The evidence was undisputed that the crane would not work efficiently located farther from the track, that is, that the crane was not located nearer the track than was necessary to its efficient operation. The trial court directed a verdict for the defendant. This was sustained upon review because under such state of facts the defendant was not guilty of negligence, and upon the further ground that the plaintiff had assumed an obvious risk.
The court reviewed the Gregory, Sisco and Milliken cases, and recognized no conflict between them and its ruling. It observed, however, that it must not be considered as approving a statement made in the Gregory case, that if mail cranes could not be placed at a distance that was entirely or approximately safe, they should be abandoned.
The use of mail cranes necessarily, to some extent, increases the danger of railroading, and it. is clearly the law, upon reason, and under the authorities, that it was the duty of appellant to not unnecessarily increase this risk, that is, that it was its duty to exercise every reasonable care to render the use of this necessary appliance as reasonably safe as was practicable with its efficient operation. The evidence at the close of appellee’s case in chief tended to show that appellant had not exercised this care, therefore as to the question of negligence there was a case for the jury.
Appellants contend that the court should have sustained this motion because the evidence showed that deceased had assumed the risk by reason of its *547obviousness, and that be was guilty of such contributory negligence as to preclude a recovery. If it was proper to send these questions to the jury at the end of the case, no prejudicial error was committed in refusing to take them from the jury on this motion. It will be more convenient to discuss them later on in the case, and we will only say at this time that the trial court did not err in refusing to take them from the jury. Our conclusion is, that although the trial court committed error in announcing that there was then no proof of negligence in the location and maintenance of the crane, it did not err in denying the motion of appellant for a directed verdict.
2. While the court did not commit error in denying appellant’s motion for a directed verdict, it did err in the theory upon.which it then permitted the case to proceed. In denying the motion it said, there was no evidence of negligence in the location and maintenance of the crane, but there was evidence that the appliance was one of unusual danger, and that the duty was on appellant to notify its employees of its dangerous character. Upon the theory that appellant was guilty of negligence in not having so notified the deceased, the case was allowed to proceed. This was error.
While the above authorities sustain the conclusion that appellant was guilty of negligence if it had located and maintained the crane unnecessarily near the track, they likewise justify the conclusion that there was no negligence, hence no liability, provided the crane, which was manifestly necessary in railroading, was not located in unnecessary proximity to the track, that is, no nearer than was necessary to its practical operation.
“It was not found, nor was there any evidence upon which a jury could infer, that the crane in question could be placed any further from the track *548than it was and perform the function for which it was designed. The plaintiff was bound to show a state of facts indicating negligent construction or location, to raise a question for the jury upon this point. It was not sufficient for him to show an injury, or that operating the device involved danger to the brakeman. He took the risk of all construe^ tions necessary and reasonably adapted to the business of the railroad. The burden was upon him to show that the appliance, 'concededly useful in the business of the defendant, was improperly constructed or located, and this he wholly failed to do. Proof that it was dangerous was not enough. He was bound to go further and show that the defendant might, by the use of reasonable care, have accomplished its purpose and at the same time protected its employees from the danger.”—Sisco v. L. & H. R. R. Co., supra; Bailey’s “Master and Servant,” sec. 602.
The court in L. & N. R. Co. v. Milliken, supra, says: ‘ ‘ This seems to us to he a fair statement of the law, ’ ’ and further says:
“Appellant asked the court to give this instruction: ‘The court instructs the jury that if they believe from the evidence that the mail crane at Camden station, in the petition complained of, was not put closer to the track than necessary for the mail catcher furnished by the United States government to take the mail bag therefrom, then the mail hag being in that position was not negligence in the company, and the jury cannot find against the defendant on account of the position of the mail crane.’ This instruction was refused, and the idea was not sufficiently presented by any other instruction given, as to whether the mail hag was in fact any closer to the track than required for the catcher to take it as the mail car passed. The evidence was very conflicting *549on this subject. If it was not, the jury should have found for the defendant, and they may not have understood this from the other instructions. ’ ’
In Brown v. New York Central & H. R. R. Company, supra, the court cites with approval Sisco v. Railway Company, supra, and says:
“We pass, therefore, to a consideration of the evidence relied upon to establish the defendant’s negligence. The mail crane which caused the death of plaintiff’s intestate was a contrivance which, when operated in connection with another appliance attached to a mail car, drew a bag of mail into' the car while it was in motion. The device is one which ■ of late years has been adopted by the leading railroads of the country, and, while exceedingly simple in its construction and operation, its use does undoubtedly add somewhat to the hazard attending the occupation of railroading. But this fact, standing by itself, it is hardly necessary to suggest, furnishes no ground of complaint to the plaintiff, for her intestate, when he entered the defendant’s service, well knew that he was engaging in an exceedingly perilous occupation, and that in consequence thereof he would be constantly exposed to the dangers ordinarily involved in the operation of a vast railroad, employing, as it necessarily did, various devices and appliances to facilitate the transaction of its business. He consequently assumed the risk of all such constructions as were reasonably adapted to the transaction of the defendant’s business; and the burden consequently rested upon the plaintiff, to estab-' lish that this particular appliance, entirely proper in itself, was either ill contrived or improperly located. ’ ’
In Kennedy v. Meddaugh, supra, the court cites with approval Sisco v. Railway Company, and says:
“There was, however, no failure on the part of *550the defendants to nse due care to provide the decedent a reasonably safe place to work, in this particular. Notwithstanding the .'proximity of the mail crane to the track, and the liability of a negligent fireman coming in contact with it when in position, it was reasonably safe. According to the testimony of defendants’ master car builder, who was familiar with the government regulations in such matters, and under whose supervision the catchers were constructed upon the mail cars, and who was therefore an expert in such matters, the mail cranes could not be placed at a greater distance and operated efficiently. The place in which decedent was set. to work was, then, according to this opinion, as safe as it could be made, consistently with provision being made for fast passenger trains taking up the mail at small stations 'without having to stop to do' so. ’ ’
“The general rule of law that a servant takes upon himself the risk or danger which ordinarily attend, or are incident to, the business in which he voluntarily engages, is well settled and undisputed. ’ ’—Yeaton v. Boston & Lowell R. R. Company, 135 Mass. 418; Lovejoy v. Boston & Lowell R. R. Co. 125 Mass. 79, 82; Hough v. Railway Co., 100 U. S. 213.
‘ ‘ The authorities require the conclusion that the employee assumes all the risks of the service in which he voluntarily engages, except such as arise from negligence on the part of the employer, so that in whatever form the question may arise, the general rule must be that risks of the service shall not be increased or caused by the employer’s negligence, but risks not increased or caused by the employer’s negligence are risks of the service which the employee assumes. The test is not dangei*, but negligence on the part of the employer.” — Elliott on Railroads, vol. 3, § 1290.
*551The appliance in this case was necessary in the operation of appellant’s road, and if it had exercised reasonable care in the location and maintenance of the crane, it had discharged its duty, and was under no obligation to notify deceased of the proximity of the crane to the track. Upon but one theory could 'defendant be held liable for negligence, on account of the use of the crane, and that was negligence in -its location and maintenance. If there was no negligence in the location and maintenance of the crane, there was no negligence in the failure to notify. This was the only question of negligence for the jury. If there was no evidence of negligence in this particular, the case should, upon this motion, have been taken from the jury. As we have seen, however, while the court was in error in declaring there was no evidence of negligence in the location and maintenance of the crane, it was right in declining to sustain the motion for a directed verdict.
3. When appellant opened its case it offered to show the custom obtaining as to the location and maintenance of-cranes on other roads. The following took place:
“Q. You may state to the jury how the mail cranes upon the Burlington road are constructed. .
Plaintiff objects as incompetent, immaterial and irrelevant.
The Court: I don’t see why this evidence should be introduced now, because the court has held that the company was not guilty of negligence in constructing this crane. * * *
Mr. Clark, for defendant: - The ruling now leaves it for the jury to determine whether or not we should warn an employee of the presence of the mail crane at that particular distance from the track.
The Court: Yes, sir.
*552Mr. Clark, for defendant: The court does not require us to prove that we gave notice, and we might as well state at this stage of the proceedings there won’t be any contention that it ever did give notice, but he was, under the circumstances which gave him notice.
The Court: That is the proposition I think you ought to confine yourself to — the evidence of contributory negligence; that he knew or ought to have known of it. It seems to me that that is the only question left in this case.
Mr. Clark, for defendant: It is for the purpose of showing that it is the same kind of crane, constructed in the same manner as those used by this road, and this crane at Fountain.
Q. Has it been found by experience on your road that that is the proper distance at which to set these cranes in order to secure proper service ?
Plaintiff objects as leading, suggestive and incompetent.
Sustained. Defendant excepts.
Q. Do you know what the experience of the Burlington road, and especially your division of the Burlington road, has been with reference to the use and efficiency of these mail cranes ?
A. Yes, sir.
Q. You may state what it has been.
Plaintiff objects as incompetent, irrelevant and immaterial.
Sustained. Defendant excepts.
Q. Are mail cranes in operation along your division of the Burlington road in a proper position to perform the service for which they were erected there, or not?
Same objection, ruling and exception.”
*553A witness, sworn on behalf of appellant, testified : ‘ ‘ These cranes are erected where there is a post-office and trains do not stop. Fountain is such a station. I have made investigation of all mail cranes upon roads other than the Denver & Eio Grande. I have corresponded with a number of officials of roads running into Denver. Í have observed mail cranes, on surrounding roads — the Burlington, Missouri Pacific, Santa Fe, Union Pacific, Eio Grande Western. The cranes on other roads are similar to ours.
Q. What was the result of your observation relative to the location of these cranes to the track?”
An objection of immateriality and irrelevancy was sustained.
The court excluded this evidence upon the theory announced in denying the appellant’s motion for a directed verdict made at the close of the case in chief for the appellee. This theory was that there was no evidence of negligence in the location and maintenance of the crane, but that the case would be permitted to proceed upon the theory that appellant was guilty of negligence in its failure to notify deceased of the proximity of the crane to the track.
As we have attempted to show before, there was uo duty on the appellant to notify appellee of the proximity of the crane, provided there was an absence of negligence in the location and maintenance of the crane. If the court intended to adhere to its position that there was no question of negligence in location and maintenance for the jury, it ought, as we have stated, to have taken the case from the jury. If it did not it ought to have permitted the appellant to show that it was not guilty of the only negligence for which it could be held liable, and the only negligence which was properly charged against it in the complaint. By the above rulings the court excluded evidence competent for such purpose, and gave ap*554pellant sufficient reason to believe that evidence tending to show reasonable and ordinary care in the location and maintenance of the crane, and that it was not located unnecessarily near the track, would not be received. When it came to charge the jury it put to the jury the question which it held was not before the jury, and upon which, by the above rulings it had prevented defendant from offering evidence.
In Instruction No. 9, the court charged:
“If you believe from the evidence in this ease that the mail crane when in operation was'Unnecessarily dangerous to employees, and to C. W. Burchard in the performance of his duty, and in the exercise of ordinary care on the defendant’s locomotive, and that the said C. W. Burchard did not know and could not by the exercise of ordinary care have foreseen the dangers to be encountered from said mail crane, and that the defendant knew, or ought to have known, of its dangers, and after such knowledge, or after it might have had such knowledge by the use of ordinary care, it failed to give the plaintiff’s decedent, C. W. Burchard, warning of such danger, then your verdict must be for the plaintiff. ’ ’
' The court here submitted tO' the jury the question of whether or not the crane was unnecessarily dangerous, that is, whether it was unnecessarily near the track, that being the only cause assigned for its being-dangerous in operation.
Prejudice from the exclusion of this evidence may also have arisen through Instruction No. 8. The verdict of the jury was a general one, there being* no indication therein, or otherwise, for what negligence the defendant was held liable, the verdict of the jury may have been based upon the fact that it found the defendant guilty of negligence in the location and maintenance of the crane, This it was permitted to *555do by Instruction No. 8, the pertinent part of which instruction reads as follows:
“And if you find from the evidence that the said C. W. Burchard was obeying a rule of the company, and that, while in the performance of his duty as required by such rule, and while exercising ordinary care on his part, he was injured through defendant’s negligence in a manner which resulted in his death, then the defendant in this case is liable therefor and your verdict should be for plaintiff. ’ ’
Again, in Instruction No. 2, the court charges:
“* * *• ; but if you believe from the evidence, that its operation was one of unusual risk and danger to employees, and not one assumed by them in the line of their employment, then it was the duty of the defendant company to so notify its employees, unless you believe from the evidence that such employees had actual knowledge or by the use of ordinary care could have known its dangerous character.”
If appellant used reasonable and ordinary care to locate and maintain the crane so that it was reasonably safe, then it was not of unusual risk and danger to employees; the excluded evidence was competent for this purpose.
4. Much evidence had been adduced by appellee tending to show that the appellant was guilty of negligence, and, notwithstanding the above rulings of the court, there was much evidence in for the appellant tending to show that it was not guilty of the negligence charged. If the case was to go to the jury the defendant was entitled to have an instruction that if there was no negligence in the location and maintenance of the crane, the verdict should be for the defendant. It asked the court to so charge in refused Instruction No. 6. Such instruction reads:
*556“The court instructs the jury that the defendant in this case was under no obligation, by contract of employment with said C. W. Burchard, deceased, or otherwise, to furnish any particular kind of mail cranes, or to adopt the latest and most improved appliances in connection therewith, or to use in its business, locomotives of any particular kind or width, and that it was only bound to exercise reasonable care to see that the mail cranes and engines used by it were reasonably safe and suitable for the purposes for which they were used; and if the jury believe, from the evidence, that the defendant’s mail crane and engine in question were suitable for the purposes for which they were designed and used, and were reasonably safe for such use, they should return a verdict for the defendant.”
The following was asked in the request for Instruction No. 16:
“If you believe from the evidence that the defendant’s methods, machinery, instrumentalities and appliances, and the mail crane in question, were sufficient for the purposes for which they were used, and reasonably safe when the said C. W. Burchard entered the defendant’s employ, and that the defendant used ordinary care to keep them and said crane sufficient for such purposes, and reasonably safe, then said O. W. Burchard assumed the risk of danger from their use and plaintiff: cannot recover in this action. ’ ’
This request was refused. Nowhere in the charge of the court was the defendant given the benefit of the law as announced in such two instructions. Further, the jury was permitted to' find against the defendant, although the defendant had been free of negligence in the construction and maintenance of the crane.
*5575. It is urged by appellant that the evidence showed that the deceased had assumed the risk of defendant’s negligence, if any, in the location and maintenance of the crane, because of the alleged obviousness of its danger. We are here considering the question of assumption of risk in case the defendant was negligent, and not the case of the risk of danger of an appliance which every employee assumes, provided it is not unnecessarily dangerous through the negligence of the employer.
The law as to the assumption of the risk is well settled, and has been frequently announced and applied in this state. The difficulty, however, is in applying the law of assumption of the risk to the facts of each particular case. Cases announcing and applying the law of assumption of the risk, among others, are: Wells v. Coe, 9 Colo. 159; B. & C. R. R. Co. v. Liehe, 17 Colo. 280; Tramway v. Nesbit, 22 Colo. 408; D. & R. G. R. Co. v. Scott, 81 Pacific 763, 765; Hughes v. Schnavel, 78 Pacific (Ct. of App.) 623; Iowa Gold Min. Co. v. Diefenthaler, 76 Pac. (Colo. Sup. Ct.) 981.
In this case the evidence is conflicting as to the facts going to show an assumption of the risk. Further, minds could reasonably differ as to whether the danger, from this crane, if located as the evidence for appellee tended to show, was so obvious as to justify us in declaring as a matter of law that the deceased had assumed the risk. We think that both this question and the one of contributory negligence were properly for the jury.
To sum up: A vital question in the case was that of alleged negligence in the location and maintenance of the crane. The appellant was entitled to fully present its evidence on this question; this, by the rulings of the court, it was prevented from doing. Further, it was entitled to have the jury properly *558charged on this question; this right also was denied it by the court.
6. This case was argued and submitted prior to April, 1905; it was decided on May 1st, 1905; April 5th, 1905, the old supreme court, consisting of three judges, ceased to exist, and on and from April 5th, 1905, the constitutional supreme court consisted of seven judges, and was controlled by the constitution as amended. After April 5th, 1905, no valid or constitutional decision could be rendered by the court unless concurred in by at least three judges. The former opinion handed down herein was concurred in by but two judges, the decision was not in conformity with constitutional requirements, and not being such was a sufficient reason for ordering a rehearing before the full bench.
All the questions considered were properly preserved by the record.
Judgment reversed,
Mr. Justice Steele concurs only as to1 sub-divisions 1, 5 and 6 of the opinion.