ON PETITION EOR REHEARING.
Potter, Justice.Another petition for rehearing has been filed in this case, this time by counsel for plaintiff in error. We think it unnecessary to again enter upon a discussion of the rules of law applicable to the facts in this case. Upon due consideration of the points made in the brief in support of the present application for rehearing we remain satisfied with the conclusion announced upon a rehearing of the cause in the opinion filed May 16, 1914, resulting in an affirmance of the judgment. (140 Pac. 1013). Counsel, however, say in *381their brief now under consideration that they are unable to find in said last decision that the court had receded from the position stated in the opinion rendered upon the original hearing that there was a total failure of proof on the part of the plaintiff below to recover. It was not said in the opinion disposing of the case on the first hearing that there was a “total” failure of proof. It was said and held, after discussing the evidence and considering its effect, that the plaintiff had failed to prove that the company’s negligence, if any, was the proximate cause of his injury; intending thereby to decide not that there was an entire lack of evidence, but that the evidence was insufficient. It was certainly intended by the later opinion to recede from the position that, as a matter of law, the evidence failed to establish a right to recover, and we think that appears from a fair reading of the opinion thus criticized. In that opinion, after referring to the previous decision and the ground thereof, we said: “The court is now of the opinion that the question whether the danger was obvious and was appreciated, or should have been appreciated, by the plaintiff, was, upon the evidence, a question of fact .for the jury, and was properly submitted to the jury by the trial court.” That statement is followed by a discussion of the evidence, showing a conflict therein as to matters to be considered in determining whether the failure to warn the plaintiff was a proximate cause of his injury, and in concluding that discussion it was said: “The evidence on the question was conflicting, and, as we are now convinced, was properly submitted to the jury.” At another place in the opinion it was said: ,
“Several experienced miners having testified that it would require experience to understand and appreciate the danger of the lump of coal falling under the conditions that existed immediately prior to the time that Benedict was injured, or that there was danger of the lump of coal falling after he and his fellow workman had attempted to pry it down with a tamping bar, and it seemed to be solid, and the plaintiff *382having testified that he believed it to be safe, or he would not have returned there to work, although the evidence as to the degree of experience necessary to understand the danger was conflicting, we are convinced that a proper application of the general rule to the facts required a submission of the case to the jury, and that neither the trial court nor this court would be authorized to determine, as a matter of law, that the danger was obvious, and that therefore the failure of the company to properly warn and instruct the defendant in error was not a proximate cause of the injury. It seems to us impossible to say that reasonable minds could not differ upon the question.”
This was said after calling attention to the general rule as to directing verdict in this class of actions, and that a court is not authorized to say, as a matter of law, that the danger was obvious, unless it is shown by the évidence without conflict that an ordinarily prudent man or one with the experience of the injured servant ought to have noticed it, and. reviewing some of the cases in which that rule was applied.
Counsel quote form the above quoted statement the words, “that therefore the failure of the company to properly warn and instruct the defendant in error was not a proximate cause of the injury,” and say that they do not understand what is meant thereby. The meaning is, we think, apparent, viz: that neither the triál court nor this court-would be authorized to determine, as a matter of law, that the failure of the company to properly warn and instruct was not a proximate cause of the injury. No doubt the thought might have been better expressed, but that is not a ground for rehearing.
The points involved in the case have received the most careful consideration by this court and we do not see that any useful purpose could be subserved by another rehearing. The present application will therefore be denied.
Rehearing denied.
Scott, C. J., concurs.