*264On Petition foe Reheaeing.
Gillett, J.A petition for a rehearing and a brief in support thereof have been filed by counsel for appellee. As the third and fourth paragraphs of the complaint were, without elaboration, held insufficient, on a ground which , was fully discussed by us in holding that the first paragraph of the complaint did not state a cause of action, it has resulted that it -is the portion of our opinion last mentioned to which counsel for appellee direct their argument, in so far as they discuss the question as to whether we erred in holding said paragraphs insufficient.
Reduced to its last analysis, the contention that the paragraphs mentioned stated a cause of action rests upon the claim that, if there is a general charge of negligence against a defendant, it is unnecessary to aver facts which disclose that a duty was owing by the defendant to exercise care for the safety of the person injured. While there are many cases in which assertions have been made that it is competent to characterize an act or omission as having been negligently done or omitted, yet we apprehend that no negligence case can be found in which it has been directly ruled that it is unnecessary to aver facts by which the legal duty to use care is made to appear. Sometimes this element appears as an incident of the pleading of other facts which it is necessary to allege in such a complaint, !but, in .oases like the one under consideration, where the ¡allegation ,of the immediate facts does not lead to the deduction that a duty upon ,the part .of the defendant to exercise care toward the plaintiff existed, the pleader must ¡allege further facts whereby the existence of the duty is manifested. .So fa¡r from .the authorities supporting counsel in the position stated, w'e think that, without exception, ,they will be found to accord with the position of the court. .See note to King v. Oregon, etc., R. Co. (1898), 6 Ida. 306, .as reported iu 59 L. R. A. 209, 214.
*265. We make no question as to its being competent to charge in a common law action of negligence, at least as against a demurrer, that the negligence relied on was that of the defendant, although it was in point of fact that of a servant for whom the defendant, as master, was responsible. The suggestion in the principal opinion, which counsel for appellee regard as an intimation to the contrary, had, entirely to do with the central proposition in the case as presented upon said paragraphs. It Was intended to indicate that there must not only be a duty shown to exist toward the plaintiff, but also that it must be a duty owing by the defendant; that it will not suffice to show a state of facts which suggests merely that a co-servant may have owed a duty which he neglected.
The pleader located appellee at a certain point between the tracks of appellant at the time he w'as struck by the mail-car. ETone of said paragraphs showed that at that time appellant owed him a duty, general or particular, to exercise care for his safety, and for this reason we continue of the opinion that said paragraphs of complaint did not state a cause of action.
The instruction given by the lower court as to the effect of the statute of 1899 upon the issue as to contributory negligence was clearly improper. That instruction was not only vague, but it was calculated to mislead the jury. In all ordinary circumstances, the giving of such an instruction is a reversible error. 11 Ency. Pl. and Pr., 140; Deilks v. State (1894), 141 Ind. 23. The point is made for the first time on the petition for a rehearing that if said instruction is considered in connection with instruction ETo. '20, given by the trial court, it will appear .that -the Jury eou'ld not have been misled. It is unnecessary, 'in view of the state of the pleadings, to determine whether the point mentioned has been waived by appellee, and, if not, whether his counsel are right in their contention. Sufficient has bean said as to the vague and misleading char-*266acter of the instruction in question to lead the court below wholly to avoid the objection upon a retrial.
The petition for a rehearing is overruled.