On Petition for Rehearing.
Per Curiam.We held at the former hearing of this cause that; under the facts disclosed by the special findings of the jury in their answer to interrogatories, it was shown that appellant w.as neither entitled to recover at common law, nor under subdivision 2 of section 1 of the Employers’ Liability Act of 1893. It was held that he could not recover under the provisions of the latter statute, because the facts disclosed that Huey had not been placed in authority over him by appellee, and therefore was not a person within the meaning of the law to whose order appellant, as an employe of the former, was bound to conform.
It is now insisted, under the petition for a rehearing, that by this latter holding the court erred. We have again carefully reviewed the facts as found by the jury, and the authorities cited pro and con by the parties to this appeal, and are constrained to abide by the conclusion reached in the original opinion. Appellant certainly could not maintain this action, under the provisions of the act in question, by simply showing that at the time he sustained the injury he was engaged in removing the lumber in obedience to the directions of Huey, to whose negligence he attributes his injuries; but he -would at least be required to go further, and show that such negligent party was a person in the service *692of appellee to whose order or direction, under the particular circumstances of the case, he, as an employe of appellee, was “bound to conform, and did conform.” uIta lex scripta est.” The law is so written and means what it expressly declares.
It is clear that the case, as presented by the facts found by the jury, is not one of common law liability, and it is equally clear, we think, that the facts conclusively show that it does not come within the provisions of the Employers’ Liability Act. As to whether the negligence imputed to Huey, under the particular circumstances in the case, in the event it further appeared that he was either expressly or impliedly invested by appellee with authority over appellant, so as to give orders and directions, to which orders and directions he was bound to conform, would render appellee liable, we need not and do not decide.
We are referred by appellant’s learned counsel to the case of Wild v. Waygood, 1 L. R. (1892) Q. B. 783; but the facts in that case are in no wise similar to the facts in this. There it appeared that one Duplea and the plaintiff were engaged in the service of the defendant in constructing a hydraulic lift. Duplea directed the plaintiff to place a plank across the well of the lift and stand on the plank. With this order the plaintiff complied, and, while standing on the plank, Du-plea negligently started the lift, which negligent act resulted in injury to the plaintiff. It further appeared in that case that Duplea had been placed by defendant in authority over the plaintiff, and that the latter was bound to and did conform to his orders at the time of the injury. The liability of the defendant in that case, under the provisions of the English statute, which are similar to those of subdivision 2 of section 1, supra, was sustained. It was held in the Wild case that, in order to establish a liability against the master under the statute, the injured servant, among other things, must show that the injury complained of was the result of the negligence of a person in the employ of the common master to *693whose orders the servant, at the time he sustained the injury, > was bound to conform and did conform, and that the injury must be the result of the negligence of the person giving the order and of the injured servant conforming thereto.
The unfavorable feature which confronts appellant, under the facts in this case, is that when they are considered and applied in reference to the plain wording and meaning of the statute, they destroy the very foundation upon which he seeks to construct his cause of action, and necessarily defeat a recovery. They clearly show that Huey had not been placed, either expressly or impliedly, by appellee in a position of authority over appellant at the time of the accident, and hence he was not a person, in any sense within the contemplation of the statute, to whose orders the latter was required to yield obedience. It is true that the jury, in answer to an interrogatory, find that appellant was bound to conform to the orders of Huey. This, however, was but a mere conclusion upon the part of the jury, and can not be accepted as a finding of a fact. As a general rule, a party seeking to enforce a right or remedy provided by statute, in order to prevail, must bring himself, substantially at least, within its provisions. Harrison v. Stanton, 146 Ind. 366, and authorities, there cited.
The petition for rehearing is overruled.