On Petition for a Rehearing.
Elliott, J.An able brief has been filed on the petition for rehearing, but the principal questions decided are not again discussed, counsel saying: “The view taken in the opinion, however, has such strong reasons to support it that we shall not ask the court to reconsider it.”
Ninety-five reasons were stated in the motion for a new trial, and it is'now complained that we did not consider all of the questions presented. We did decide all of the main questions and such as counsel fully argued, but it is perhaps true that we did not expressly decide some minor ones, although those decided really rule the case.
*197The question upon the evidence as to whether Parker was- or was not guilty of contributory negligence was one of fact-for the jury, and not of law for the court, and as there was evidence satisfactorily supporting the verdict, we must leave it undisturbed. There are, no doubt, cases where the court will determine the question of contributory negligence, but this is not one of them. Whether Parker could have seen the defect, and whether it was such as ordinary prudence and-vigilance would have enabled him to guard against, were questions of fact. Descriptions of the defect were given by the witnesses, and it is impossible for the court to say, as matter of law, that he could by exercising ordinary prudence have seen it and avoided injury. It certainly was not one open, to observation, and, besides this, one of the superior agents; of the corporation, its chief representative in fact, had ordered him to work upon the machinery, and we can not. perceive any reason for taking the case from the jury. Baker v. Allegheny Valley H. R. Co., 95 Pa. St. 211; S. C., 40 Am. R. 634. It is quite clear that it would have been error for’ the trial court'to have instructed the jury to find for the-appellant, and it follows that this court can not interfere. City of Indianapolis v. Gaston, 58 Ind. 224; Pennsylvania Co. v. Hensil, 70 Ind. 569; S. C., 36 Am. R. 188; Louisville, etc., R. W. Co. v. Richardson, 66 Ind. 46; S. C., 32 Am. R. 94; City of Washington v. Small, 86 Ind. 462, p. 469; Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346; Pennsylvania R. R. Co. v. White, 88 Pa. St. 327; Willard v. Pinard, 44 Vt. 34; Robson v. Northeastern R. W. Co., L. R., 10 Q. B. Div. 271; Curtis v. Detroit, etc., R. R. Co., 27 Wis. 158; Hutch. Car. 615. In such cases as this the question must, under proper instructions, be left to the jury as one of fact.
We recognize and approve the general rule, that a servant who continues in the master’s employment with full knowledge of the risk can not recover for injuries received. Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440. But that rule *198does not apply here. There is no such evidence as warrants the assumption that the appellee knew of the defective condition of the machinery, or that it was such as to subject him to any extraordinary risks. The jury by their general verdict, and also in answer to interrogatories, explicitly negative the existence of knowledge. It would be a palpable violation of long settled rules to set aside the conclusion of the jury upon the evidence as it comes to us.
A single interrogatory is selected by appellant, and upon that a judgment is demanded. This demand can not be heeded, for the answer is not such as controls, and it is only where the single answer is of controlling force that the general verdict will be set aside. This has been again and again decided. Grand Rapids, etc., R. R. Co. v. McAnnally, 98 Ind. 412, vide pp. 417, 418, and cases cited; Hereth v. Hereth, ante, p. 35. Besides, it has been very frequently decided that answers to interrogatories will not control the general verdict, unless there is an irreconcilable conflict, and here there is no such conflict. But if we are wrong in applying these rules, still the appellant can not succeed, for all that appears in the answer is that one of the superior agents of the corporation, the one in charge of the shop where appellee worked, had knowledge of the defect, and it is quite clear that his knowledge would not conclude the appellee. Atlas Engine Works v. Randall, post, p. 293. Even if Higginson, the foreman, had been a mere fellow servant in the same line of employment with Parker, instead of a foreman having full authority over him, it is doubtful whether knowledge on the part of Higginson would have concluded Parkei'.
We do not think it can be said as a matter of law that a workman is guilty of negligence who changes from one part of his work to another at the command of the agent set over him by the master. Rogers v. Overton, 87 Ind. 410. Here there was no change from one shop to another, no change from one branch of business to another, but only a change in the same shop from one piece of machinery to another, and we *199‘Can perceive no reason for holding the servant guilty of contributory negligence in making such a change pursuant to the ■orders of his superior. It would be unreasonable to require servants to disobey the orders of a superior agent under such circumstances. A prudent man has a right, within reasonable limits, to rely upon the ability and skill of the agent in whose ■charge the common master has placed him, and is not bound, at his peril, to set his own judgment above that of his superior. Atlas Engine Works v. Randall, supra; Rogers v. Overton, supra. There may, perhaps, be cases where it would be contributory negligence to change positions, as, for instance, where the change is made to a branch of business with which the servant is unacquainted; but this is not such a case, for here the superior agent had authority to give orders, had charge of the branch of business in which the servant was employed, and the change did not take the servant out of the line of his employment. Dowling v. Allen, 74 Mo. 13; S. C., 41 Am. R. 298; Cone v. Delaware, etc., R. R. Co., 81 N. Y. 206; S. C., 37 Am. R. 491; Cowles v. Richmond, etc., R. R. Co., 84 N. C. 309; S. C., 37 Am. R. 620; Ryan v. Bagaley, 50 Mich. 179; S. C., 45 Am. R. 35; Corcoran v. Holbrook, 59 N. Y. 517; S. C., 17 Am. R. 369; Luebke v. Chicago, etc., R. W. Co., 59 Wis. 127; S. C., 48 Am. R. 483; Manufacturing Co. v. Morrissey, 40 Ohio St. 148; S. C., 48 Am. R. 669.
In the course of his testimony, and in explaining the character of his injury, the appellee exhibited his injured hand to the jury. There was no substantial error in permitting this to be done. Wharton says: “Injury to the person may also be proved by inspection. Thus in an action to recover damages for an injury to a limb, the injured limb may be exhibited on trial.” Whart. Crim. Ev., section 312. A great number of interesting cases are collected by him, all holding such evidence admissible. One among the most remarkable •and amusing cases of this general character is that of Thurman v. Bertram, 20 Alb. L. J. 151, where a baby elephant was brought into one of the English courts. In his work on *200Trial Evidence, p. 599, Abbott says: “The injured member may be exhibited to the jury.” An English author says that evidence afforded by inspection is of the highest character. 1 Taylor Ev., p. 513. By another English writer the same view is taken. Best Prine. Ev. 199. There has been much discussion as to whether a person accused of crime can be compelled to submit his person to the inspection of the jury, but it is agreed on all hands that instruments with which a crime was committed, the clothing of the accused or of the deceased,, wounds and marks on their person, may be given in evidence. 15 Cent. L. J. 2 and 209; 22 Alb. L. J. 145; Rogers Exp.. Tes., p. 104.
Our own decisions have, in a great variety of cases, recognized the right to submit to the jury persons and things for' inspection. Fleming v. State, 11 Ind. 234; Story v. State, 99 Ind. 413; Short v. State, 63 Ind. 376; McDonel v. State, 90 Ind. 320, vide p. 328; Beavers v. State, 58 Ind. 530. Perhaps the most numerous class of cases in which the right of the jury to inspect a thing has been discussed is that in which, the genuineness of written instruments has been involved, and it has been uniformly held that it is competent for the jury to make such inspections, and that they may be aided by magnifying glasses. Lawson Exp. and Opinion Ev. 415.
The case of Stephenson v. State, 28 Ind. 272, does not touch the question here involved as is evident from the statement of the court, for that statement shows that no evidence at all was offered, the trial judge holding that as the defendant was in court there was no necessity for any evidence as he could determine the defendant’s age from his appearance. The case of Ihinger v. State, 53 Ind. 251, decides that an instruction given by the court was erroneous for the reason that it made the case turn entirely upon the personal appearance of the party rather than upon the testimony of the witnesses. The decision in Robinius v. State, 63 Ind. 235, does go farther and holds that the court trying the case has no right to take into account the personal appearance of the accused in de*201termining the question of his age. Conceding the correctness of this' decision, although it has been strongly assailed as requiring a judge to disregard the evidence of his own senseis, still there is a distinction between such a case and the present, for where age is the material question, as it was in the case cited, the decision upon inspection really determines the whole case; while, in such a case as the present, the inspection of the wounded member simply illustrates and makes clear the testimony of the party and assists in determining the character of one of the facts in the case. There is-still another distinguishing feature, and that is this, in the present case the question is not as to the effect of the exhibition of the wounded hand; while in the case cited the question was entirely as to the force and effect of the inspection of the person of the accused.
Petition overruled April 28, 1885.All that we are now required to decide is, whether it was substantial error to allow the appellee to exhibit to the jury in the course of his testimony his wounded hand; we are not required to determine whether the result of such an exhibition can be deemed evidence in the strict sense of the term, or what force and effect should be ascribed to it, if regarded as evidence.