On Petition for a Rehearing.
Zollars, J.It was held in the principal opinion that we could hot, over appellee’s objection, decide the questions made upon the giving and refusal of instructions, for the reason, as then stated, that, although the clerk had copied into the record what purported to be instructions given and refused, there was nothing to show that they had been filed, as required by *395the statute, in order that they might become á part of the record without a bill of exceptions.
In its petition for a rehearing appellant’s counsel cite us to another portion of the record where the instructions thus given and refused are embodied in a bill of exceptions. This they should have done in their original briefs, as required by Eule 19 of this court.
The question was made in appellee’s brief, and in his counsel’s statement of points for oral argument, that the instructions were not in the record, for the reasons above stated, and stated in the principal opinion. Appellant’s counsel now claim that they met the question thus made in their oral arguments.
If their recollections are correct, ours are at fault. However that may be, as the case is an important one, we give to appellant the benefit of the doubt, and have very carefully examined all of the instructions given and refused, as,' also, the arguments of counsel in relation thereto. The theory of appellant’s counsel is, that the railway company was only bound to exercise ordinary care in the construction and maintenance of the bridge, and that the jury should have been so instructed; and, further, that if appellee had an opportunity, by the exercise of care, to- discover that the bridge was too low to pass under with safety, and remained in the service of the company, he must be held to have voluntarily assumed the risk, and thereby waived all right of action for damages.
Complaint is made that some of the instructions given at the request of appellee, and upon the court’s own motion, do not come up to the standard thus fixed by appellant’s counsel, in that they omit the element of ordinary care on the part of appellant in the construction and maintenance of the bridge, and put the case to the jury regardless of the assumption-of risk on the part of appellee.
It would be a tedious and, we think, unprofitable task to set out all of the numerous instructions thus objected to, and to extend this opinion in meeting, specifically, the ob*396jections urged. Some of the instructions are somewhat confused, in that the jury were instructed in relation to matters not in issue either by the pleadings or the proof, but we think that the extraneous matters referred to could in no way have misled the jury to the prejudice of appellant. Some of the instructions given were, perhaps, not as full as they might have been, but it has often been held by this court that it is unnecessary, as it is impracticable, to embody all of the law of the case in one instruction, and that where a rule of law applicable to the case is given in one instruction it is not necessary to repeat it in another; and further, that if an instruction contains no erroneous proposition of law as applied to the case, and .either party thinks that it is faulty because not full enough, his remedy is to submit additional instructions. Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551 (570), and cases there cited; Board, etc., v. Legg, 110 Ind. 479 (485), and cases there cited; Wilson v. Trafalgar, etc., G. R. Co., 93 Ind. 287 (291).
And so, it has been many .times held that all of the instructions given must be considered together, and that, if thus considered, the law was correctly stated in such a manner as to be intelligible, and not confusing to the jury, the judgment will not be reversed by reason of inaccurate statements in any particular instruction. Louisville, etc., R. W. Co. v. Jones, supra, and cases there cited; Cline v. Lindsey, 110 Ind. 337, and cases there cited; Rauck v. State, 110 Ind. 384, and cases there cited; Deig v. Morehead, 110 Ind. 451, and cases there cited.
Leaving out of consideration for the present the seventh instruction given at the request of appellee, the others given at his request, and upon the court’s own motion, taken together, put the case to .the jury substantially upon the theory contended for by appellant’s counsel. And in the ten instructions given at the request of appellant’s counsel, their theory was pushed to the utmost limit, and, in some instances, *397beyond what reason and the correct rules of the law will justify.
It appears in this case that the brakes which appellee was required to set were on the tops of the cars. It was necessary for him, in getting to them, to pass over the tops of the ■cars. There are eases which hold that, in such a case, railway companies are not bound .to erect the overhead bridges constructed by them, of such a height that brakemen can stand or walk erect upon the tops of the cars without coming in collision with them.
As applied to this case, especially, we can not approve of those rulings. Here, the bridge was but four feet and nine inches above the tops of the ears; the brakes were on the tops of the cars, and, to get to them, the brakemen were required to pass over the tops of the cars, not only in the daytime, but also in the night-time, and often, doubtless, as in this case, when the night was dark, rainy and foggy, and when it would be almost if not quite impossible for them to know of the proximity of such bridges when called to brakes upon moving trains, even if they had knowledge that such bridges were maintained.
To erect and maintain such bridges, under such circumstances, is negligence.
Further reflection has strengthened the conviction on our part, that this conclusion is fully sustained, both by reason and the better authority.
In addition to the authorities cited in the principal opinion, we cite the following: Shearman and Eedfield Neg. (4th ed.), section 198, et seq., and notes and cases there cited; Beach Contrib. Neg., section 134; Chicago, etc., R. R. Co. v. Johnson, 116 Ill. 206.
And where, as here, the facts are shown without any conflict in the evidence, the court may charge the jury that in the erection and maintenance of the bridge the railway company was guilty of negligence. Board, etc., v. Legg, 110 Ind. 479, and cases there cited.
*398Iii the contract of hiring, an employee assumes all risks ordinarily and naturally incident to the service, but he does not assume the risk of injury from unusual hazards. To say the least, in this case appellee did not, by his contract of hiring, assume the risk of injury from the low bridge, unless he had knowledge of the hazard-. The danger from such a bridge is not a hazard ordinarily and naturally connected with the service. It is not shown that he was informed of the danger, nor that he had knowledge of it when he engaged in the service.
As to his duty to exercise care for his own safety, both in discovering the danger and in avoiding the injury, the jury were fully instructed, and, as we have said, and without being more specific, the rule was pushed beyond what reason and the law will sanction.
It is not easy to determine whether the seventh instruction given at the request of appellee was intended to place appellee’s right to recover upon the doctrine of comparative negligence, or upon the ground of wilfulness on the part of appellant, in which case negligence on the part of appellee would not defeat his right to recover. Upon either construction, the instruction was erroneous. In the first place, the doctrine of comparative negligence, as held by the Illinois court, and as applied to a ease like this, has no place in the rulings of this court; and, in the second place, appellant is not charged with wilfulness in the complaint.
The error, however, must be regarded as a harmless one, as the jury found, in answer to interrogatories, that appellee was not guilty of negligence. It is, therefore, apparent that the verdict was not based upon the greater negligence of appellant and the lesser negligence of appellee; nor upon the theory that, although appellee was guilty of negligence, he could yet recover by reason of wilfulness on the part of appellant. See Worley v. Moore, 97 Ind. 15; Woolery v. Louisville, etc., R. W. Co., 107 Ind. 381.
As to the eleventh instruction, asked by appellant and re*399fused by the court, it is sufficient to say that it does not state the law correctly, and that if it did, the error in refusing it would be a harmless error, as the second instruction so asked and given embodied the substance of it. Stephenson v. State, 110 Ind. 358; National Benefit Ass’n v. Grauman, 107 Ind. 288.
Filed June 20, 1888.And so of instructions 12 and 12-|- asked by appellant and refused by the court; without deciding whether, as asked, they stated the law correctly, it is sufficient to say that the substance of them was embodied in other instructions given.
From what is here said it must not be understood that we intend to endorse in full the theory upon which appellant’s counsel have argued the alleged errors in the giving of instructions as above stated, and as applied to a case like this.
After a careful consideration of all of the questions discussed by counsel, we are satisfied that the record presents no error for which the judgment should be reversed.
The petition for a rehearing is, therefore, overruled.