Dissenting Opinion.
Ross, J.I can not concur in the opinion of the majority of the court for several reasons, namely: First. Because the deceased was injured in the performance of his duties, by reason of a danger which was an incident of the service, with the hazards of which he was familiar. Second. The evidence wholly fails to show any negligence of the appellant, which caused the injury, and, third. There is no evidence, either direct or circumstantial, from which a jury might reasonably infer that the deceased was free from fault, while there is positive, unqualified and undisputed evidence that the injury was the result of his own acts alone.
*80Ordinarily, it would seem unnecessary to cite authorities to sustain the legal propositions upon which my reasons for dissenting, as above enumerated, are based, but I deem it necessary here, in view of the fact that the opinion announced by the majority of the court, not only ignores, but overrules, legal principles long and firmly settled in every State of the Union, except, perhaps, in those States where the rule of degrees of negligence prevails. For the purposes of this opinion, however, I will not attempt to collect the decisions of the courts of other States, but will simply cite those of our own courts.
A servant, engaging in the service of a master, assumes all the risks naturally incident to the services to be performed. Taylor v. Wootan, 1 Ind. App. 188; Parke County Coal Co. v. Barth, 5 Ind. App. 159; Indianapolis Union R. W. Co. v. Ott, 35 N. E. Rep. 517; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440; Brazil, etc., Coal Co. v. Cain, 98 Ind. 282; Louisville, etc., R. W. Co. v. Frawley, 110 Ind. 18; Griffin v. Ohio, etc., R. W. Co., 124 Ind. 326; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327; Louisville, etc., R. W. Co. v. Hanning, Admr., 131 Ind. 528.
This principle applies as well to the employment of minors as to adults. Taylor v. Wootan, supra; Louisville, etc., R. W. Co. v. Berry, 2 Ind. App. 427; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151.
In order that the appellee should be entitled to recover, it was necessary for him to prove, not only that the appellant was negligent in the performance of some duty owing from it to the deceased, but that such negligence of the appellant was the proximate cause of the injury complained of. Pennsylvania Co. v. Hensil, 70 Ind. 569; City of Greencastle v. Martin, 74 Ind. 449; Pittsburgh, etc., R. W. Co. v. Conn, 104 Ind. 64.
lie must also prove that the deceased in no way con*81tributed to his own injury. Toledo, etc., R. W. Co. v. Brannagan, Admx., 75 Ind. 490; Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486; Indiana, etc., R. W. Co. v. Green, Admx., 106 Ind. 279.
The contributory negligence of a minor will defeat his right to recover, the same as if he were an adult. Stewart v. Patrick, 5 Ind. App. 50; Chicago, etc., R. W. Co. v. Harney, 28 Ind. 28; Atlas Engine Works v. Randall, 100 Ind. 293, and cases cited.
The undisputed facts in this case are, that three months prior to the receipt of the injury complained of the deceased, a boy eighteen years of age, grown and fully developed physically and mentally, was employed by the appellant as “boiler washer,” whose duty it was, among other things, to go under the engines, remove the plugs, and clean out and wash the boilers, and then to replace the plugs and see that they were safe; that the deceased, at the time he took employment, was warned of the dangers incident to the services he was to render, and fully directed as to how the work should be done, in addition to which an experienced man accompanied him and showed him how to perform his duties.
On several other occasions prior to his injury, the deceased was warned of the dangers of his undertaking and fully instructed concerning the manner in which he should do the work and not run any unusual risk of being injured; that a short time prior to his injury he went under the engine which was afterward the cause of his injury, and,. removing the mud plugs, cleaned and washed the boiler, preparatory to the engine being steamed up and sent out upon the road.
After the engine was steamed up, it was discovered that steam was escaping from the mud plug which he had *82taken off in cleaning the boiler, but whether the escape was caused by its not having been screwed back on sufficiently tight by him, or because improperly put on by getting the threads crossed, or because the threads were so worn that they would not hold securely, is not clear, as the evidence upon this point is conflicting; that the deceased took a wrench and went under the engine for the purpose of tightening the plug, and while in the act of so doing was so badly scalded and burned that he shortly afterwards died from the effects thereof. Whether he went under the engine in obedience to the direction of the appellant’s “round-house foreman,” or of his own accord and unknown to any of appellant’s other employes, is also uncertain on account of a conflict in the evidence.
From these facts it is impossible to say that the appellant was remiss in any duty owing to the deceased. It can not be said that it was negligent in furnishing him with defective machinery, because it was his duty to look after and repair the defect complained of, and the evidence shows that it was the deceased himself who put in the plug which either blew off or was taken off by him, permitting the steam to escape, resulting in his injury.
Although the deceased was a minor, the evidence shows.that he was of sufficient age, intelligence and experience to understand the dangers of the service and the necessity for being careful in the performance thereof. If, by his own mistake or negligence, he was injured, he would have no right of action against the appellant. If the deceased could not have recovered had he lived, the appellee can not recover.
To hold the appellant answerable to a servant for his own acts, is contrary to all known law.
But another, and equally fatal, objection to appellee’s *83right to recover is presented by the evidence, in that three witnesses testified that the deceased, immediately after the accident, said “There is no one to blame for this but myself. I turned the plug the wrong way.” This evidence is not only uncontradicted, but is all the evidence pro or con upon the subject as to whether or not the deceased was free from fault.
It is the opinion of the majority of the court that, although this was all the evidence upon that question, yet the jury had a right to disbelieve it if they saw fit and find that it was not his fault, but the fault of appellant.
To sustain a verdict, in a case of this character, where neither the affirmative evidence nor the circumstances show freedom from contributory negligence of the injured party, is to overthrow a principle firmly settled by the decisions of the Supreme Court of this State. The right to overrule the Supreme Court was specially withheld from this court by the Legislature when it created the court. Section 25 of act approved February 28, 1891 (Acts 1891, page 44).
I think the judgment of the court below should be reversed and a new trial granted.
Filed Nov. 23, 1893.