dissenting:
I cannot concur in the above opinion that the action of the court below in overruling the demurrer to evidence and entering judgment for the plaintiff in accordance with the verdict of the jury should be reversed.
*50I think the opinion right in so far as it holds that the defendant in the court below gave sufficient warning to the plaintiff’s intestate; but it owed an equal duty to such intestate, either not to have exposed him to the risk of performing the duty in the performance of which he came to his death, knowing, as it did, that he had absolutely no experience therein, or to have used ordinary care to have instructed him in the proper manner of the performance of such work before exposing him to such risk.
In 1 Shearman & Redfiekl on Negligence (6th ed.), sec. 219-a, the learned authors say: “The principles governing the employment of minors are, to a large degree, also applicable to the employment of inexperienced, ignorant, feeble or incompetent servants. A master having notice of any such defect in a servant, no matter what his age may be, is bound to use ordinary care to instruct the inexperienced or ignorant, to avoid putting the feeble to work too heavy for their strength, and generally to refrain from exposing them to risks which they are not fit to encounter.”
In the case of Reynolds v. Railroad Co., 64 VT. 66, 24 Atl. 134, 33 Am. St. Rep. at pp. 910-11, it is held: “When an employer engages one to perform a dangerous service, which requires caution and the exercise of peculiar skill, knowing that he is without experience and ignorant of its dangers, it is the duty of the employer to give the employee suitable instructions and warnings as to the dangers he is likely to meet in the performance of the services he is engaged in, and is required by the employer to perform. The defendant does not seriously contend against this rule, but insists that at the time of the accident it was using all reasonable means to instruct the plaintiff as to the duties of his position, the dangers of the work, and how to avoid them. But this very fact was one that the plaintiff had the right to have the jury pass upon, for the court cannot say, as matter of law, *51that the defendant was fulfilling its duty in respect of instructions.”
In the case of Am. S. Co. v. Fost, 12 Ind. App. 421, 39 N. E. 891, as taken from a note in 44 L. R. A. at p. 83, it was held: “Granting that the findings show that the appellee had been sufficiently warned of the perils and dang- . ers attending the performance of his duties, it still remains true, as found by the general verdict, that he was ignorant of the nature of his work, and of the manner of the proper performance of the same. There is nothing in the answers returned by the jury to indicate that appellee had received such instructions as he should have been given, in order to understand fully the character of the work he was to perform, and the proper manner of performing the same. It may have been true, therefore, that just prior to the injury the appellee was warned To be careful,’ and Took out for his hand;’ and yet with the reasonable exercise of his faculties, he might still have been unable to so perform his duties as to avoid the danger. Simply warning the appellee of danger generally by the appellant did not excuse the latter from pointing out the particular danger of this employment, and to so instruct the appellee as to enable him to avoid such danger. Nor is the finding that the appellee was so warned in conflict with the implied finding in the general verdict that the appellee did not receive any instructions from the appellant or its servants concerning the duties he had to perform, and the dangers and hazards attending his employment, at the time of the injury. A warning to an ignorant and inexperienced man, under such circumstances, would be of little avail.”
In Giebell v. Collins Co., 54 W. Va. 518, 466 S. E. 569, it is held: “It Is the duty of the master who sets a servant to work in a place of danger to give him such notice and instruction as is reasonably required by the youth, inexperience, or *52want of capacity of the servant, and, failing to do so, he is liable for the damage suffered through such neglect.”
That skill acquired by experience was necessary to fit the plaintiff’s intestate to perform the duty in question without being exposed to unreasonable danger to himself, is affirmatively shown by the testimony of several witnesses for plaintiff.
The evidence in this case shows that defendant knew that the plaintiff’s intestate had never before sat in a belt or clipped a cable, even where not exposed to the danger of coming in contact with a live wire. Yet it gave him absolutely no instruction as to how to adjust his belt or how to-sit or work in the belt so as to “balance” or “control himself” while swinging therein (as the testimony in the case shows affirmatively, as I view it, or certainly as the jury were warranted in inferring from the evidence, and hence-upon demurrer to evidence must be regarded by the court - as the fact in this case). Never having had any experience whatever in- working swinging in a belt, or in. adjusting the strap which lifted or lowered him, he was ignorant of the extent of the danger to which he was exposed. No-amount of warning as to the existence of the danger, if he came in contact with the live wire, could inform one without some such experience of the difficulty of avoiding coming into such contact. This the testimony for plaintiff' shows the defendant must have known. This the plaintiff’s intestate did not know. With this knowledge on the defendant’s part, and with its further knowledge of the absence of such knowledge on the part of the plaintiff’s intestate, the defendant exposed the plaintiff’s intestate to the risk it did, without, as above stated, giving him any instructions whatever.
Whether the defendant in such conduct was guilty of failure to exercise reasonable care for the safety of its said employee was a question of fact for the jury.
*53This court, in the case of Mason v. Post, 105 Va. 494, 54 S. E. 311, 11 L. R. A. (N. S.) 1038, said: “Negligence is the failure to do what a reasonable and prudent person would ordinarily have done, under' the circumstances of the situation; or doing what such a person, under existing circumstances, would not have done. The duty is dictated and measured by the exigencies of the occasion.”
As was said in Fisher v. C. & O. Ry. Co., 104 Va. at p. 639, 52 S. E. 374, 2 L. R. A. (N. S.) 954: “The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in the case was such, as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of affairs is such that reasonable men may differ upon the question as to whether there was negligence or not, the determination of the matter is for the ' jury.”
Or, as stated in the case of Milton v. N. & W. Ry. Co., 108 Va. 763, 62 S. E. 961: “In brief, it may be said that, if upon a demurrer to the evidence, the evidence is such that a jury might have found a verdict for the demurree, the court must so find, and grant judgment in his favor, * * * (cases cited). And, further, where reasonably fair-min/ied men might differ about a question, such question must be decided against the demurrant on a demurrer to the evidence.”
As was said by this court in the late case of Norfolk v. Anthony, 117 Va. at p. 777, 86 S. E. 68: “It is furthermore well settled by the Supreme Court of the United; States and this court by practically an unbroken line of decisions, that negligence only becomes a question of law, to be taken from the jury, when the facts are such that fair-minded men can only draw one inference therefrom. If fair-minded men, *54from the proof submitted, may honestly differ, as to the negligence charged, the question is not one of law, but one of fact, to be determined by the jury under proper instructions from the court.”
I am of opinion that there was ample evidence in this case to warrant the jury in finding that in the aforesaid conduct of the defendant it was guilty of a failure to exercise reasonable care for the safety of its said employee. The court below was of this opinion and overruled the demurrer to evidence by the defendant and entered judgment for the plaintiff. I think the lower court was right, and that the case should be affirmed on this point.
In the case of Templeton’s Admr. v. Lynchburg Traction Co., referred to in the majority opinion of the court, there was no question of inexperience or of duty to instruct.
Reversed.