On Petition for a Rehearing.
Davis, J.The learned counsel for appellee have filed an able and earnest petition and brief for rehearing in this case, which we have carefully examined and considered.
There is evidence in the record tending to prove that prior to the accident appellee, in the discharge of his duties, had been accustomed to assist other employes in the operation of the hand wagons in hauling iron in and about appellant’s works. Whether he had been in the habit of using the particular wagon in question does not clearly appear. The fair inference from the evidence, *353however, is that the several workmen in appellant’s shops did not use the same wagon on different occasions. There were a number of the wagons, and we gather from the evidence that they respectively used whatever wagon was the most convenient when desired.
The language used in the instruction implies that counsel for appellee understood there was evidence tending to prove that he had used or seen others use the wagon in question, as the result of which he had obtained knowledge of the alleged defects and unsafe condition referred to in the instruction. There was also evidence tending to prove that the defects of which complaint is made were open, visible, and easily seen in the operation of the wagon. Now, it is true, as contended by his counsel, that appellee was employed to assist and not to inspect. It was no part of his duty to keep the wagons in repair or'to see that they were kept in repair. The rule is that, as to appliances with which the employe works, the law requires him to know such defects as he ought to see by the exercise of diligence in his employment, and it does not require him to know or ascertain the defects in connection with which he is not obliged to labor.
In this case, however, under the evidence and the instructions, the jury was authorized to infer that appellee had, within three weeks prior to the accident, in the discharge of his duties, in assisting in the operation of the wagon, obtained knowledge of the alleged defects therein. In view of such knowledge, under the facts and circumstances disclosed by the evidence, in the absence of notice of such defects to appellant, appellee had no right to indulge in the presumption that the wagon had been repaired; but when he became aware of its unsafe condition, as indicated in the instruction (and justified by *354inference, at least, from the evidence), he was chargeable with notice of such defects, and in the subsequent use thereof by himself, or by others in proximity to him, it was his duty to exercise care in proportion to the danger likely to be encountered.
Filed June 24, 1893.What we have said in the original opinion, and also herein, is only intended to apply to the facts in this case. There is not so much difference between the views of counsel and our own as to the general rules of law which govern in such cases, but we do not agree in their application to the facts in hand. City of Lafayette v. Ashby, 34 N. E. Rep. 238.
We adhere to the conclusion that the instruction was erroneous and prejudicial, and, therefore, the petition for rehearing is overruled.
Lotz, J. — I think the petition should be granted.