On Petition for a Rehearing.
Davis, C. J.The learned counsel for appellant, in a strong and earnest brief, insists that a rehearing should be granted on the question arising out of the refusal of the trial court to give the eleventh instruction asked by appellant.
Counsel urges "that the opinion upon this question is unsound in reason, and is in the face of, and against, the elementary rules which everywhere prevail,” and, further, that our conclusion "arises out of a radical misapprehension of the doctrine of this instruction.”
If counsel is correct in his contention, the appellant is entitled to a rehearing.
The recognized ability of counsel, and the vigorous attack made by him on the position of the court, in con*527nection with his assertion that “I have never, since my call to the bar, felt my position upon a legal proposition which had not heretofore been settled so absolutely impregnable,” together with his statement that “I might the better endure the chagrin of my defeat,” if “the opinion upon this question was based upon sound reason, ” have prompted us to again carefully consider the instruction.
The principle which underlies this instruction is based on the proposition that should the jury find, from the evidence, that, in the reasonable and careful operation of railroads, it is necessary to employ and put into the service as yard brakeman inexperienced men, “then there could be no breach of duty on the part of appellant in employing such inexperienced person,” without reference to whether appellee had any notice or knowledge of such necessity, or whether he had any knowledge or opportunity to learn of such inexperience of his co-employe, for the reason, as contended'by counsel, that appellee must be held to know that such inexperienced men were likely to be employed in that line of service; and that when he entered into that service, he assumed all the risks growing out of such inexperience and incompetency.
Counsel urges that in the very nature of things, there must be a beginning point for employes in the train service of railways, and that the beginner at that point is without experience; “that the lowest grade of service in the operation of railroad trains is that of yard brakeman, at which appellee and his coservant, Leonard, were engaged at the time of the accident in question; that the only way in which a person can acquire competency as a yard brakeman is by actual experience in that work,” and, therefore, when appellee entered the service of appellant he assumed all the risks incident to *528the subsequent employment of such inexperienced and incompetent yard brakemen as Leonard; and that the injuries sustained by appellee, when engaged in the hazardous business of attempting to make the coupling, by reason of the inexperience and incompetency of Leonard on the first occasion that they ever worked together, without any previous knowledge or opportunity to acquire knowledge concerning him, must be regarded as the result of a casual accident, and must rest entirely on appellee.
In other words, the contention, as we understand it, resolves itself into this, that in the absence of actual knowledge appellee was bound to take notice, when he entered that service, of the fact that it was necessary for the company to employ and put into service as yard brakemen inexperienced and incompetent men; that whether he knew of such necessity was immaterial, and, also, it was immaterial whether he had any warning or knowledge as to the incompetency of Leonard, or an opportunity to acquire such knowledge; that, regardless of these questions, appellant had the right to employ an inexperienced and incompetent yard brakeman to act in the same line of service with him; that under these circumstances appellee was bound, on the one hand, to perform the act in which he was engaged when injured, without any reliance on the competency of those assigned to assist him; and, on the other hand, he must be held to have assumed all the risks growing out of the carelessness and negligence of such inexperienced and incompetent coemploye.
The risks assumed by the servant are such as are open alike to the knowledge and observation of both the master and the servant, and the rule has no application when the master and servant are not, in this respect, on an equality.
Filed April 6, 1894.Measured by this rule, we are of the opinion that the eleventh instruction does not fully and correctly state the law. It certainly ignores any knowledge or opportunity to acquire knowledge on the part of appellee as to the probability or necessity for placing him in a hazardous position with an inexperienced and incompetent fellow-servant.
If the instruction proceeded on the theory that appellee entered into the service in which he was engaged with knowledge, or that he continued in such service after he had an opportunity to learn that it was necessary, in the reasonable and careful operation of the road, to employ inexperienced and incompetent coemployes to assist him in the hazardous work in which he was engaged, a different question would be presented.
The petition for a rehearing is overruled.