On Petition por a Rehearing.
Hackney, J.Appellant’s learned counsel have sup-, ported their petition for a rehearing by two able and elaborate briefs. They have discussed the two questions shown by the original opinion to have been presented by the record, namely, the extra hazards of the service in which the appellant was injured as compared with the service performed before, and the fellow-servant rule, as applied to inspectors of cars, furnished by a railroad company to a shipper, and an injured servant of such shipper.
The first proposition is discussed in both briefs without reference to or consideration of our opinion, originally expressed, that no such question was made an issue by the complaint, and that the finding was not that the extra hazard was beyond that contemplated by the contract of employment.
In one of ■ the. briefs, counsel suggest that the court overlooked and failed to consider the question. We are constrained to believe that counsel have either not read *419the court’s opinion or that they have overlooked the decision of the question.
Filed Dec. 21, 1894.The proposition with reference to the fellow-servant rule has been again considered by us. A majority of our members adhere to the conclusion reached in the original opinion, while it is the opinion of a minority of the members that the original opinion went quite as far as possible in the direction of appellant’s position, and that the correct rule would not even require a shipper, obtaining a car from a railroad company for loading stock, grain, coal or other material, to supply inspection in order to protect himself from liability to his servant who is injured from defects in the car while assisting in such loading.
While the writer does not accept that view of the present case, it must be admitted that if a farmer takes hogs to a railway for shipment in the company’s car, it is reasonable and the theory plausible that he should not be required, at the hazard of liability, to inspect the car for the protection of his servant who aids him in loading the stock.
The petition is overruled.