specially concurring:
I concur in the judgment, denying a rehearing, but do not assent unqualifiedly to what might be construed, from the language of the opinion, to be a decision to the effect that, where it is shown that, although an appliance used by a railroad company is constructed in the manner adopted by other well-managed railroads, it is still the province of a jury to determine whether or not the railroad company was guilty of negligence in so constructing it. It appears from the testimony, without contradiction, that the trestle upon which plaintiff was injured was constructed in the manner adopted by other railroads; hence, counsel for the defendant company earnestly contend that,' in law, no negligence on the part of the railroad was shown. In support of this contention, ’they urge that an employer is liable for the consequences of -negligence, and not of danger, and that the test of negligence in methods, machinery and appliances, is the ordinary usage of the business in which such methods, appliances and machinery are used. That' this is the general rule cannot be questioned, but is it applicable to the case^ at bar 1
Whether a rule of law is applicable to a given case depends upon the facts, so that the precise question presented is, whether the facts upon which *213negligence is predicated present a question on that subject which it was proper to submit to the determination of the jury.
Plaintiff claims the railroad company was negligent because the space between the rails on the trestle track was not planked throughout its entire length. That it was not so planked is conceded, and that plaintiff was injured because of the absence of such planking cannot be doubted. It appears from the testimony that the car he was attempting to couple to the train was standing with the end towards him about five feet over the planking between the tracks; that he failed to make the coupling; that the impact caused the car to recede; that in following it up, he stepped off the end of the planking between the ties, and, being unable to extricate himself, was injured by the moving train. In these circumstances, the plaintiff was exposed to a hidden danger obvious to those familiar with the structure and its use. It is the duty of an employer to exercise reasonable care to protect his employees from latent danger. Whether or not the employer has complied with the law in this respect must be determined by what an ordinarily prudent person, entrusted with a like duty, with due regard to the danger to be guarded against, would have done under similar circumstances. This rule was not satisfied by showing that trestles used by other railroad companies are constructed similar to that of the defendant, for the question still remains, in the circumstances of this case (notwithstanding such showing), was the railroad company negligent in failing to anticipate and provide against such an occurrence as happened plaintiff, by the use of such reasonable precautions to prevent it as would have been adopted by prudent persons?