Dissenting Opinion.
Lairy, J.— The court in deciding the question presented by the record and briefs in this case was required to determine the extent to which the common-law liability of a defendant in actions for negligence falling within the provisions of the statute under consideration is affected by the provisions of such act. After a careful consideration of the facts in question as a whole, and after a consideration of the several sections and provisions of the act, I find myself unable to give my assent to the construction which the court' has placed upon some of its provisions. The construction to be placed on this act is of so much importance that I feel constrained to express my views in a separate opinion.
By the first section of the act the rule known at common law as the fellow-servant rule is abrogated where five or more persons are employed. Prior to the enactment of this statute the common-law rule had become firmly settled that a master is not responsible to those engaged in his employment for injuries suffered by them as a result of negligence on the part of other servants engaged in the same common or general employment. The provision of §1 of the act, to the effect that an employer under the conditions stated shall be liable for the injury or death of an employe resulting in whole or in part from the negligence of his, its or their agents, servants, employes or officers, has the effect to make the employer liable to his employes for the negligence of servants engaged in the same common or general em*192ployment to the same extent that he is liable for his own negligence or that of his vice principals.
Appellee asserts that this provision of §1 wholly abrogates the doctrine of assumption of risk in its application to dangers occasioned by the negligence of fellow servants. It has been frequently said that a servant by his contract of employment assumes the risk of all dangers caused by negligence on the part of his fellow servants, which statement is generally regarded as the reason underlying the common-law fellow-servant rule which denies to a servant the right to recover for injuries so caused. Appellant asserts that the provisions of §1 abrogate the fellow-servant rule and that the doctrine of assumption of risk goes with it in so far as the dangers occasioned by the negligent acts of fellow servants are concerned. It is argued that the provision abolishing the fellow-servant rule relieved employes of the assumption of risk as to all dangers resulting from the negligence of fellow servants, and that, in this case, if it appears that the dangerous condition of the face of the coal was the result of negligence on the part of the loaders, who were fellow servants of decedent, then decedent cannot be held to have assumed the risk of such danger even though he knew of such- condition or by. the exercise of due care could have learned it. While the reasoning seems plausible, and the conclusion reached appeals logical, I cannot give my approval to the proposition so advanced. It cannot be true that the provisions contained in §1 of the act entirely absolves the servant from the assumption of risk as to all danger occasioned by the negligence of coservants. At common law a servant was precluded from recovering for an injury resulting from the negligence of a fellow servant without regard to his actual or constructive knowledge of the danger occasioned thereby. The provision of the statute which we are now considering imposes *193liability on the employer for negligence of his servant causing injury to a coservant. If the injury tó a-co-servant results from a dangerous condition caused by the negligence of a fellow servant, he may rely upon such negligence for a recovery in the absence on his part of actual or constructive knowledge of the danger; but, if he knew of the danger occasioned by the négligence of his fellow servant, or if he could have known of it by the exercise of reasonable care, the doctrine of assumed risk applies unless abrogated by some other-provision of the act. The liability of the master for the negligence of his employes is thus placed on the same basis as his liability for his own negligence, and that of his vice-principals. To hold otherwise would be to impose upon an employer a greater responsibility in respect to the negligence of an employe than would rest on him on account of his own negligence or that of a vice-principal, as in the latter case he might invoke the doctrine of assumed risk as to known dangers, but in the former he would be precluded by the statute from doing so. I cannot assent to such a construction.
Section 2 of the act deals with the question of contributory negligence. The first sentence places the burden of proving contributory negligence on the employer in conformity with the act of 1899- (Acts 1899 p. §8, §362 Burns 1914). The second sentence is somewhat obscure for the reason that the language employed seems to confuse the defense of contributory negligence with the rule of assumption of risk. The language is: “No such employe who may have been injured or killed shall be held to have been guilty of negligence or contributory negligence by reason of the assumption of the risk thereof in any case where the violation by the employer or his, its or their agents or employes, of any ordinance or statute enacted, or of any rule, regulation or direc*194tion made by any public officer, bureau or commission, was the cause of the injury or death of such employe.” In determining the meaning of this sentence, the court will look to the law as it existed prior to the enactment of the statute and to the evil which it was intended to remedy. The courts of last resort in this state had held that a servant could not be denied a recovery on the ground that he had assumed' the risk of a danger which was the result of the failure of the master to obey or conform to a statute or ordinance, but the courts likewise held that the master in a case might defend on the ground that the servant was guilty of contributory negligence in encountering the danger so created. Balzer v. Waring (1911), 176 Ind. 585, 590, 95 N. E. 257, 48 L. R. A. (N. S.) 834; Davis Coal Co. v. Polland (1901), 158 Ind. 607, 62 N. E. 492, 92 Am. St. 319. It was the evident purpose of the legislature to modify the law as thus announced so as to entirely cut off the defense of contributory negligence in cases where the servant voluntarily encountered a danger occasioned by the failure of the master to obey or conform to any ordinance or statute enacted, or to any rule, regulation or direction made by any public officer, bureau or commission, the meaning of the language being that no employe shall be held guilty of contributory negligence by reason of his having voluntarily encountered a known danger of the kind specified. Where an injury results from, a danger arising in the manner prescribed, the servant cannot be denied a recovery on the ground of assumption of the risk under the former holdings of this court, and the provision under consideration precludes the employer from making any defense in such a case on the grounds of contributory negligence.
The third sentence of §2 deals with contributory negligence of the servant in encountering dangers other than those specified in the preceding sentence. As to *195such dangers it provides that: “In actions brought against any employer under the provisions of this act for the injury or death of any employe, it shall not be a defense that the dangers or hazards inherent or apparent in the employment in which such injured employe was engaged, contributed to such injury.” The other parts of this section deal with contributory negligence as a defense, and, while the part quoted is somewhat obscure in its meaning, it is safe to assume that the legislature by this language had reference to the defense of contributory negligence and not to assumption of risk. So construed it means that the fact that an employe knowingly encounters a danger either apparent or inherent which contributed to the injury shall not, of itself, be sufficient to establish contributory negligence as a matter of law. In other words, if an employe voluntarily and knowingly encounters a danger and receives an injury as a result, he will not be.precluded on the grounds of contributory negligence from a recovery unless it appears that, in doing so, he did not exercise care and caution commensurate with the known danger. As to whether he did so or not would be a question of fact for the jury to be determined from the facts of each particular case, as §7 of the act provides that all questions of contributory negligence shall be questions of fact for the jury to decide. So construed, §2 is consistent with every other provision of the act and is in no way in conflict with the provisions of §3, which abrogates assumption of risk with reference to the hazards and dangers only which are expressly enumerated therein. If the construction placed upon any part of §2 by the opinion in the case of Vandalia R. Co. v. Stillwell (1913), 181 Ind. 267, 104 N. E. 289, Ann. Cas. 1916D 258, is in conflict with the construction here made, that opinion should be modified to the extent of such conflict.
*196The part of the act which deals with the doctrine of assumption of risk and modifies the common-law rule on this subject is §8. By the provisions of this section, three classes of risks -are specified as to which the doctrine of assumption of risk shall not be held to apply. The first class includes all hazards arising from the violation of a law or ordinance by the employer, or from such violation of any rule, direction or regulation made by any public officer or commission. The second class includes all hazards which result from, or are created by, the obedience of the injured servant to any order or direction of the employer or of any employe of the master whose orders or directions the injured servant was under obligations to conform to or obey. The third class includes all dangers arising from any defect in the place of work furnished to the employe by his employer, or to any tool,, implement or appliance so furnished, where such employer had knowledge of such defect or might have obtained such knowledge by the exercise of ordinary care in time to have repaired such defect or to have discontinued the use of such working place, tool, implement or appliance before the injury occurred. The statute places upon the employer the burden of proving that he did not have either actual or construct-' ive knowledge of the defect in time to have taken the steps provided for preventing the injury.
In charging negligence on the part of the master with respect to a defective working place, or with respect to any tool, implement, or appliance furnished by the master, it was necessary, prior to the enactment of this statute, for the plaintiff to allege facts showing that the master had either actual knowledge or constructive notice of such defective condition. The statute has the effect to relieve the plaintiff of the burden of alleging or proving these facts and to place upon the employer the burden of proving that he had no knowl*197edge, either actual or constructive, of the defective condition of such working place, tool, implement, or appliance in time to have repaired the same or discontinued its use before the injury occurred. The section under consideration having abrogated assumption of risk in actions for injury caused by defective conditions of the character above enumerated, it is no longer necessary for the plaintiff to allege or prove that he had no notice or knowledge of such defect.
It is not claimed that the danger which caused the inj ury to appellee’s decedent falls either within the first or second class of risks just enumerated, but it is claimed that the working face of the coal as described in the complaint and in the evidence was the working place of decedent within the meaning of the statute. The pleadings and the evidence in this case show that the condition of the working face of the vein was changed every time the coal was shot down and removed. In the operation of the mine it was necessary to cut under the coal and then to shoot it down and remove it. Every time this operation was repeated a new working face was presented with new conditions and new hazards which the master could not foresee or guard against. The general rule is well settled that it is the master’s duty to use reasonable care in providing the servant a safe place to work, but this rule is not applicable to cases where the progress of the very work in which the servant is engaged creates changes in the conditions which surround him from time to time as the work proceeds, thus increasing or diminishing the hazards incident to the work. The reason for thus relaxing the rule in such cases is that it is more than the master can do to keep a changing working place safe from transient shifting hazards, which spring up only as the work progresses. The master’s duty does not require him to stand over the servant at every stage of the *198work as it proceeds to see that the place does not become dangerous on account of changing conditions. Island Coal Co. v. Greenwood (1898), 151 Ind. 476, 50 N. E. 36; Labatt, Master and Servant §588; Finalyson v. Utica Mining, etc., Co. (1895), 67 Fed. 507, 14 C. C. A. 492; Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418; Riley v. Neptune (1913), 181 Ind. 228, 103 N. E. 406; Citrons v. O’Rourke Engineering, etc., Co. (1907), 188 N. Y. 339, 80 N. E. 1092, 19 L. R. A. (N. S.) 340.
This court in the case of Island Coal Co. v. Greenwood, supra, applied the rule thus stated to a case where a machine operator was injured by the falling of coal which was left by the loaders adhering to the roof and extending back from the face of the vein, holding that the danger of such coal falling was not a danger of the working place, and that, as the opportunity of knowledge by the employe was greater-than that of the employer, such employe must be held to have assumed the risk.
The common law imposes upon the owner or operator of a mine the duty to use ordinary care to provide safe working places to those employed in the mine, and our statute provides for the appointment of a mine boss and requires that he shall visit and examine every working place in the mine at least every alternate day while the miners are or should be at work, and that he shall examine and see that each working place is properly secured by timbering and that the safety of the mine is assured. He shall see that a sufficient supply of timbers are always on hand at the miner’s working place. He shall also see that all loose slate and rock overhead in the passage ways through which the miners have to travel to their work is taken down or carefully secured. This accident occurred in one of the rooms where the mining was being carried on, and not in a *199passage way. Where the mine boss has inspected á room and has seen that it is in a safe condition at that time, he is not required to visit it or to inspect it again until the second day thereafter, unless he receives notice from the miners of a dangerous condition which requires his attention. §8580 Burns 1914, Acts 1905 p. 72. In the meantime the miners are engaged at the face of the vein cutting under the coal, blasting it down and removing it. Every time this operation is repeated dangerous conditions may arise which the miners themselves remove as the statute evidently contemplated they should do. During this interval, the miners are creating the transient dangers which arise from the prosecution of the work, and they are required to observe them when they arise and to guard against them. Transient dangers thus arising in the progress of the work were not regarded at common law as dangers of the working place for which the master was held responsible, and there is nothing in our statute which changes the common-law rule in this respect. When a word which has a well-recognized meaning at common law is used in a statute, such word is held to be used in its common-law sense unless the statute clearly shows that it is used in a different sense. Sutherland, Statutory Construction §253. The part of the statute under consideration which provides that a servant shall not be held to assume the risk of dangers caused by any defect in his working place must be held to refer to such dangers as were regarded at common law as dangers of the working place; therefore the transient dangers which may arise due to the prosecution of the work during the intervals between the visits of inspection by the mine boss cannot be regarded as dangers of the working place within the meaning of the statute under consideration, and the rule as to assumption of such risk was not thereby abrogated. As to such dangers so arising, *200the servant must be held to have assumed the risk as at common law, in case he knew of them or could have discovered them by the exercise of reasonable care.
Under the issues and the evidence in this case, the first question for the jury to determine was whether or not appellant was guilty of the negligence charged in the complaint. Under the first section of the act, appellant was responsible for any negligence on the part of the loaders in failing to remove the loose coal, and he was also responsible for the negligence of the machine operator, who were all fellow servants of the injured employe. Under this section the negligence of the servant is the negligence of the master, and if the jury found that either the loaders or the machine operator had been guilty of the negligence charged and that such negligence was the proximate cause of the injury the first question was determined adversely to appellant. This question yras submitted to the jury under proper instructions, and there was evidence to support a finding and verdict against the defendant so far as this issue is concerned. The finding of the jury on this issue of fact, however, was not alone sufficient to justify a verdict against appellant. Before such a verdict could be properly returned, the jury must also, find that appellee’s decedent was free from contributory negligence, and that he did not assume the risk so far as these defenses are available to defendant under the pro-' visions of the act of 1911. The first of these questions was submitted to the jury under the instructions of the court and no special objection is urged against any of the instructions on this subject; but the court refused to give proper instructions tendered by appellant on the issue of assumption of risk, and by the instructions given did not submit such question.to the jury for its decision.
I am of the opinion that the dangerous condition of *201the face of the coal was not a danger of the working place of appellant’s decedent. For that reason, the statute does not abrogate the common-law rule as to the assumption of the risk as to such danger in case the dangerous condition was known to decedent or could have been discovered by him in the exercise of due care in time, to have avoided it. In the opinion of the writer, a question of fact was presented by the evidence; which should have been submitted to the jury under proper instructions.
Myers, J., concurs.Note. — Reported in 118 N. E. 921, 119 N. E. 485. Liability of a mine owner to servant for injuries by the falling of a mine roof, Ann. Cas. 1912B 577. See under (2, 3, 8) 26 Cyc 1360; (4, 5, 9) 36 Cyc 1106-1114.