*469On Petition for Behearing.
Bruce, J.Counsel for appellant complains because tbe testimony of the defendant is not quoted at length in the opinion. In the opinion we expressly stated that when a motion is made to set aside a verdict on the ground of the insufficiency of the evidence, the only question at issue is whether there is sufficient evidence to support the verdict, and the fact that, there may be much evidence in contradiction thereof is immaterial. When this statement is made, and it is clearly intimated that it is the plaintiff’s evidence that is being considered, we do not believe that any confusion or erroneous impression can be created. The evidence of defendant’s witnesses is indeed only material on this appeal on the question of the instructions, and we believe that we have given sufficient thereof for the consideration of the same.
Counsel further complains because the following instructions were not specifically passed upon by this court: “I instruct you further, gentlemen of the jury, that a servant when he engages in a particular employment is presumed to do so with a knowledge of and a taking of the risk of its ordinary hazard, but when the servant shows that the injury received was in consequence of a risk not ordinarily incident to the employment, and that said injury grew out of the master’s negligence, the burden is then upon the master to show that the servant knew and understood the increased dangers.” It is claimed that this eliminates any care upon the part of the servant. Counsel also complains of the following instruction: “I instruct you further, gentlemen of the jury, that if an employee, in the discharge of the duties in his line, voluntarily takes a place which be is not required to take, he assumed the risk which may attach to the place he may have taken by reason of his employment, and if you find that the plaintiff in this action, of his own free will, without invitation from his employer, the defendant, and notwithstanding the warning of the defendant, placed himself in an unnecessarily perilous position, and in consequence sustained the injury complained of, and you further find that the defendant was in no way negligent, plaintiff, under these circumstances, would not be entitled to a verdict at your hands.” This instruction, however, clearly negatives the complaint in regard to the one formerly quoted; namely, that the former instruction “eliminates any care on the part of *470the servant,” and under it “the servant could close his eyes and stand in front of a gun, and if the master did not tell him to come away before the gun went off, the court, under this opinion, would hold that the master was liable, and would stand by his instruction.”
Counsel has, however, throughout his brief and in his petition for a rehearing, taken isolated portions of the 'instructions, and has refused to consider the instructions as a whole. The question is not whether any particular clause or paragraph in itself is complete and satisfactory, but whether the instructions as a whole are such as to present the case fairly to the jury. We have examined the instructions. as a whole in this case carefully, and are satisfied that the case was fairly and fully presented. The second instruction quoted by us, for instance, cures any omission in the one first quoted, while the complaint in regard to the subsequent one, namely, that the court erred in using the words, “and you will further find that the defendant was in no way negligent,” and that such words seem to eliminate the offense of contributory negligence, is .abundantly met by the other portions of the instructions. In one of them, for instance, the court says, “I instruct you, in this connection, that in determining the relative degrees of care, the want of care manifested by the parties at the time of the injuries, the age and discretion of the party injured, is a proper subject for you to consider; and in determining the issue of the plaintiff’s contributory negligence you may look at all the surrounding facts and circumstances in evidence before you, and determine therefrom whether or not the plaintiff used such care as a person of like age and ordinary prudence would have used under the same or similar conditions, and the burden of proof is on the defendant to show contributory negligence of the plaintiff.” Again the court said, “Now, gentlemen, by contributory negligence is meant some negligent act or omission on the part of the plaintiff in an action, some act or some omission on the part of Oakland, which concurred or co-operated with some negligent act or omission on the part of the defendant as the approximate cause of the injury complained of by plaintiff; and in this connection, gentlemen, I instruct you that if you believe from the evidence that the plaintiff himself was guilty of contributory negligence approximately contributing to his injury, as contributory negligence has been defined, you will find for the defendant, even though you should believe that the negligence of the defendant *471contributed to tbe cause of tbe plaintiff’s injury. I instruct you further, gentlemen, that the defendant was not an insurer of the plaintiff’s safety, at the time and place here in question, and you cannot infer or presume that defendant was negligent at said time and place, or find a verdict in favor of plaintiff, from the mere fact that an explosion occurred and that plaintiff was injured.”
Counsel further complains and states that “this court overlooked entirely the question of contributory negligence involved in this case. It overlooks entirely the fact that this story that was told afterwards was, in the judgment of every man, woman, and child that knows the defendant in this case, a manufactured story learned for the purpose of this lawsuit.” He is absolutely correct in this assumption, except that this court has overlooked the question of contributory negligence. This court knows nothing of the opinion “of every man, woman, and child that knows the defendant.” It is governed by the record merely, and has nothing to do with any opinion that is not expressed in the record. In fact, it is governed by the facts disclosed, and not by opinions, whether given in or out of the court. Nor, too, does it‘believe that it is overstepping its duty in affirming a judgment when it can see no prejudice in the record, and believes that the instructions to the jury, when taken as a whole, presented the ease fairly and fully, and that no errors of law were committed, even though it appears that there is a material conflict in the evidence which the jury must pass upon.
The petition for a rehearing is denied.