On Petition for Rehearing.
17.
An earnest and able brief is filed by appellee on petition for a rehearing, in which it is urged that we mistook the gravamen of the action as one of failure to provide a safe place to work, whereas it is asserted the cause of action is for negligence in placing the torpedo on the track and leaving it there. It is true that the negligence alleged is in placing a torpedo on the track and leaving it there, but it must be plain that it is in its last analysis, the failure to make and keep the place of work reasonably safe, and in appellee’s original brief his position is stated as follows in his points and authorities, in Nos. 1, 5, 7, 19, 24 and 26. 1. “In charging a failure to furnish a safe place to work it is not necessary to allege that something was defective or out of repair. A useful appliance in perfect condition may be so used or placed by the master or some person *233to whom the master has attempted to delegate the duty of making or keeping a safe place, as to become an obstruction or other dangerous agency.” 5. “A complaint alleging facts from which a breach of a nondelegable duty to provide a reasonably safe place to work, may be inferred, is good.” 7. “If the master delegates the duty to another to furnish his servant a safe place to work this does not excuse the master and the person to whom the duty is delegated as a vice principal.” 19. “Every place where a servant is required to go in the line of his duty must be kept safe, even if it requires inspection to do so.” 24. “No matter by whom the duty of furnishing a safe place to work is performed, the master is liable.” 26. “Proof of a custom to furnish servants -an unsafe place to work, is no defense.” Appellee’s requested instructions were on that theory, involving, under the particular allegations, changing conditions of the place, that is, of reasonable safety or otherwise, depending whether torpedoes were or were not on the track.
18.
It is next urged that we were in error in our conclusion that the cause had been tried in the court below as a eonmon-law action, whereas, as counsel assert, the eomplaint was drawn under the Federal act. There is no allegation in the complaint, or finding by the jury, that appellants were engaged in interstate commerce, or that appellee was so engaged. It may possibly be inferred from the allegation that the line of railway extended from Louisville through Indiana to St. Louis, but it is essential that it should appear that appellee was injured while engaged in interstate commerce. Illinois Cent. R. Co. v. Behrens (1914), 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051. But it is conceded and asserted by appellee in the last brief, that the cause was tried as a common-law action.
19.
It is next urged that we were in error respecting the subject of assumption of risk, and that instruction No. 4 is only a modified form of instruction No. 15 tendered by appellants, and therefore the error an *234invited one. The difficulty with appellee’s position is that this instruction is just the reverse of instruction No. 15, and as we pointed out, wholly disregards the question of assumption of risk, which, under the holdings of the Supreme Court of the United States, we are not at liberty to ignore. In Seabord Air Line Railway v. Horton (1914), 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, it is said, “It seems to us that §4, in eliminating the defense of assumption of risk in the cases indicated, [injury arising from violation of a statute] quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. And, taking §§3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in eases where the violation of a statute has contributed to the injury or death of the employe, there is, with respect to cases not in the category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk — perhaps none was deemed feasible.” In the later case of Southern R. Co. v. Crockett (1914), 234 U. S. 725, 34 Sup. Ct. 897, 58 L. Ed. 1564, it is said, “Upon the merits, we of course sustain the contention that by the Employers Liability Act the defense of assumption of risk remains as at common law, saving in the cases mentioned in §4, that is to say: any ease where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.” Our own cases have uniformly held tnat assumption of the risk no longer constitutes a defense, where the employer has violated a statute enacted for the safety of employes. Vandalia R. Co. v. Stilwell (1914), 181 Ind. 267, 104 N. E. 289; Cleveland, etc., R. Co. v. Oesterling (1914), post 481, 103 N. E. 401; Waverly Co. v. Beck (1913), 180 Ind. 523, 103 N. E. 332. Whatever, if any, *235different construction could have been put upon the act of Congress, the question is foreclosed by the decisions of the Supreme Court of the United States.
20.
The evidence is urged as showing that it was the duty of the flagman to remove the torpedo for the push car. There is other evidence that he was not flagging for the push car, and that it was the duty of those on that car to look out for and remove the torpedoes themselves, and that when flagmen did remove them for hand ears, it was for the purpose of preserving them, and the jury so finds, and that the trackmen were provided with torpedoes to replace those which might be exploded by them, and that the purpose of removal by trackmen or flagmen was to save the torpedo, and that it was not customary to notify of the presence of torpedoes, and that appellee knew as much about these facts as any one. These findings preclude appellee’s theory of the duty owing him, and we think we did not misapprehend the record, and that the petition for a rehearing should be overruled.
Note. — Reported in 105 N. E. 1025; 106 N. E. 369. As to the liability for injury to railroad employe by torpedoes on the track, see 16 L. R. A. (N. S.) 1084; 19 Ann. Cas. 1097. As to the requirements that master furnish servant with safe means and appliances to work with, see 92 Am. Dec. 213, 21 Am. Rep. 579. See, also, under (1) 26 Cyc. 1394; (2, 5) 26 Cyc. 1165; (3) 26 Cyc. 1397; (4) 26 Cyc. 1393; (6) 26 Cyc. 1386; (7) 11 Cyc. 996; (8) 7 Cyc. 421; (9) 26 Cyc. 1180; (10) 11 Cyc. 751; (11) 3 Cyc. 383; (12, 13) 26 Cyc. 1491; (14) 3 Cyc. 442; (15) 3 Cyc. 248; (16) 26 Cyc. 1513; (17) 26 Cyc. 1384; (18) 26 Cyc. 1395; (19) 3 Cyc. 248; (20) 26 Cyc. 1516.