On Petition for a Rehearing.
Elliott, J.In a very forcible and able brief, counsel for the appellee contend that we departed from the established rule and weighed the evidence. In this counsel are in error.
We took the evidence as we found it in the record, and decided, on the uneontradicted evidence, that there could be no recovery. The decision of the case, in the main, depends upon the question whether there was a promise, relied upon by the appellee, exonerating him from the consequences of his negligence in remaining in the appellant’s service after he acquired full knowledge of its dangers. We have held in many cases that where the evidence fails to make out a case the judgment will be reversed. City of Warsaw v. Dunlap, 112 Ind. 576 ; Cincinnati, etc., R. W. Co. v. Long, 112 Ind. 166 ; Riley v. Boyer, 76 Ind. 152; Pittsburgh, etc., R. W. Co. v. Morton, 61 Ind. 539; Roe v. Cronkhite, 55 Ind. 183; Ray v. Dunn, 38 Ind. 230; Crossley v. O’Brien, 24 Ind. 325 (87 Am. Dee. 329).
Where, as here, there is only one witness upon a pivotal point, it is our duty to apply the law to his testimony, and if, under the law, the testimony is not sufficient to sustain a recovery, so adjudge. Where there is no conflict of testimony the court must necessarily decide the legal effect of the testimony in the record. In doing this there is no departure from the long settled rule to which counsel refer.
■ The question of negligence -is never one exclusively of fact. The jury find the facts, but if from the facts one inference only can be drawn, and that is that there was negligence, it mustbe so adjudged as matter of law; or, conversely,' if it can be clearly affirmed as matter of law that there was no negligence, the court must so declare. In no case where *36negligence is the issue does the court entirely abdicate its power, for as to the law it must always rule, although, in some instances, the jury ultimately decide whether there is, or is not, negligence; but in every case the court must declare the law.
In ruling that there is no negligence the court does not rule upon a question of fact. Judge Holmes says: “ Where a judge rules that there is no evidence of negligence, he does something more than is embraced in an ordinary ruling that there is no evidence of a fact. He rules that the acts or omissions proved or in question do not constitute a ground of legal liability, and in this way the law is gradually enriching itself from daily life, .as it should.” Holmes Common Law, 120.
This principle applies here, for we rule, not that there is no evidence of a fact, but that the facts proved do not create a legal liability. It has been very often decided by our own and by other courts that, where the facts are undisputed and unequivocal, the court must apply the law to them. Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404, and cases cited, Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186, and cases cited ; Counsell v. Hall, 5 New Eng. Rep. 462, n.
The doctrine that the welfare of society forbids a man from thrusting himself into immediate and certain danger without pressing necessity, remounts to the case of Hales v. Petit, 1 Plowden, 253, a case made famous because of its having suggested, as many suppose, to Shakespeare, the grave-digger’s scene in Hamlet. Although the reasoning of that case is quaint and fanciful, still the principle asserted is a Avise one, and has long formed part of our jurisprudence.
We did not assert in our former opinion that an employee, who takes a risk that imperils his safety, can not maintain an action; but Ave did decide that if he, knoAviugly and deliberately, assumes a risk that will lead him into immediate and certain danger, he can not recover, although his employer had promised to remedy the defect. The authorities Ave cited sus*37tain this principle, and we applied it to the uncontradicted evidence. Where, as here, there is only one witness to á material fact, we must act upon his testimony, and in applying a principle to it we do not weigh evidence. Cincinnati, etc., R. R. Co. v. Long, 112 Ind. 166; Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250.
Filed March 7, 1888.It may be that on another trial the evidence may be such as to take the case out of both the rules here stated, for it may well be that additional evidence will explain the testimony given by Mr. Watson, or prove circumstances giving it a different meaning and effect; but as the record presents the case to us, we find by applying the law to the evidence that the verdict is not supported.
Petition overruled.