dissenting.
I find myself unable to agree to the majority opinion in this case, but have neither the time nor inclination to enter upon an elaborate discussion of the evidence, nor the merits of the case. As shown in the majority opinion, the-superintendent of the work was one of the owners of the property. He was in the yards daily- — practically all the time — superintending the work. It goes without saying that decedent was subject to his orders and directions in the management of the work in the yards. There is no evidence that Rhine assumed authority in the matter of the preparation of the safety appliances of, in, or -about, the yards so long as they were under the inspection of the superintendent. True, decedent had worked. for defendant for a long time, and in matters of detail under his immediate control often exercised his own judgment, but not when the superintendent was present and directing. In my opinion, the case turned upon the condition of the stringers or foundation upon which the heavy stone slabs rested. The evidence seems to me to be clear *364and beyond question that there were two of those stringers upon which the slabs rested — one at either side. Under one side was a heavy piece of hardwood timber, • which afforded a sure and safe foundation upon which the great weight of the stones rested. The one on the other side was made up of short pieces of timber of unequal lengths and sizes, and not of sufficient strength to bear the weight without springing and giving down, thus causing the standing slab to topple over and crush the life out of decedent. Added to this unquestioned proof, there was evidence that upon inspection made soon after the accident the pieces of timber composing the weaker side were decayed and rotten. Upon this subject the evidence was conflicting. Whose duty was it to pass upon the weight of the evidence upon this point? Clearly and unquestionably that of the jury. The evidence establishes the fact that the superintendent — one of the owners of the plant — had ,the fullest opportunity to know of these conditions. It was his duty to know. Is it at all surprising that, under the circumstances, Mr. Rhine should have relied upon him to furnish a place of safety? Who was negligent? The statute provides that all questions of negligence are for the jury. Under those circumstances, what right would the district court have had to step in, without allowing the jury to exercise-their proper functions, take the case from them, and direct them how to decide? In my opinion, absolutely none. Then, what right has this court to exercise that power, usurp the functions of the jury, and pass upon the questions of fact? In my opinion, absolutely none. We have said so often, it is useless to repeat it, that all questions of fact are for the jury. The statute says that all questions of negligence are for them. Why not let these salutary rules stand?