Dissenting Opinion.
Lotz, J.I do not concur in the prevailing opinion. The complaint charged negligence against the appellant in failing to keep a certain hand wagon in a reasonably safe condition, and, on account of such failure, the appellee suffered severe personal injuries.
The negligence was denied, and to this issue, and the consequences of the alleged negligent conduct, all the evidence given in the case was directed. There was a sharp controversy and some contradiction.
There was evidence tending to show that, about three weeks before the appellee sustained the injuries, he had knowledge of the unsafe condition of the wagon. The appellee did not work with the wagon, although he worked with other wagons in and around the shop, and where the wagon that produced the injury was used. In this condition of the evidence, the court gave this instruction to the jury: “The plaintiff had a right, in the absence of knowledge to the contrary, to presume that the wagon conveying the iron that injured him was in reasonable repair, and in reasonably safe condition for the uses to which it was applied, and even if the plaintiff' *351had known, three weeks or more before his injury, that said wagon was out of repair, he had a right to presume that the defendant would use reasonable and ordinary diligence in repairing the same.”
The giving of this instruction is the sole ground for the reversal of the cause, as shown in the majority opinion.
In my judgment, the instruction was proper, in view of the evidence adduced. The first part of the instruction is predicated upon certain general rules of law governing the duty of the master to his servant. These rules are that the master must furnish his servant with reasonably safe machinery and appliances and place to work, and exercise reasonable supervision and care to keep them safe.
The presumption is that the master discharged his full duty to his servant, but this presumption is not conclusive. It is but a probability, and yields as soon as any evidence is produced that tends to show the contrary.
The latter part of the instruction is, in principle, the same as the first. It was appellant’s duty to keep the wagon in- a reasonably safe condition, and the presumption is that it did so. This necessarily included putting it in reasonable repair, else it would not be reasonably safe.
The presumption of the continuity of things does not apply to transient conditions. The fact that the wagon was out of repair three weeks before, raises no presumption that it continued so to be up to the time of the injury. It might have been repaired many times in the interval.
The appellee, relying upon the prudence and caution of the appellant, and on the duty imposed on it by law, as he had a right to do, may have* had his caution lulled to repose, but because of a fleeting, transient condition, *352these salutary rules are not only overthrown but the appellee is made to suffer for the nonfeasance of the appellant, as I understand the prevailing opinion.
At most, the instruction deals only with presumptions, bare probabilities, which yield to the slightest evidence. The appellant sought to show that the wagon was at no time dangerous and unsafe, and to this end much of its voluminous evidence was directed. If its evidence was of any weight whatever, these presumptions faded away before it. The appellant ought not be permitted to assail the verdict for want of evidence, and at the same time assert that its own evidence given in the case did not overcome a bare presumption.
I think it apparent that the jury rested its verdict on the evidence, long after the stage of presumptions mentioned in the instruction had been passed.
In the light of the record of this cause, I can not readily see how the instruction could be harmful, even if erroneous.
In all other respects, I agree with the majority opinion.
Filed March 31, 1893.