Dissenting Opinion.
Ross, J.I can not concur in the views of the majority of the court in saying that instruction number two, which the appellant requested to be given, “is too narrow — not sufficiently comprehensive — as applied to the evidence to which it is evidently directed.”
It is so well settled that I hardly need cite authorities in support of the proposition, that an instruction, in order to be good, need not cover the entire case, but that if construed in conjunction with the other instructions given, it states the law correctly, it is sufficient. Louisville, etc., R. W. Co. v. Grantham, 104 Ind. 353; Lehman v. Hawks, 121 Ind. 541; Conway v. Vizzard, 122 Ind. 266.
And it is equally well settled that if a party desires special instruction upon any particular branch of the *530case, it is his duty to prepare and .submit to the court such instruction as he may desire given. Burgett v. Burgett, 43 Ind. 78; Louisville, etc., R. W. Co. v. Grantham, supra; Conrad v. Kinzie, 105 Ind. 281; DuSouchet v. Dutcher, 113 Ind. 249.
And if the instructions ■ so tendered are applicable to the issues and the evidence in the cause, and are not covered by other instructions given by the court, it is error to refuse to give them, if, taken and construed in conjunction with the instructions given by the court, they state the law correctly.
The same rule applies in determining the sufficiency of an instruction asked and refused as obtains in determining the correctness of an instruction given.
Applying the rule to this instruction, we have the proposition plainly presented: Does it, when taken in connection with the instructions given, correctly state the law as applicable to the issues and evidence in this case? By the instructions given, the jury had already been told that where the master knowingly employs or knowingly keeps in his service an incompetent employe, he is liable to a coemploye for injuries resulting from the incompetency of such servant, and it was therefore unnecessary to incorporate that element in the instruction asked. Had the court given the instruction asked, and the appellee appeared here as the appellant, asking this court to reverse the judgment on account of the giving of this instruction, because “too narrow,” the court would hold that the instruction, considered in connection with the other instructions given, states the law correctly.
The instruction, however, had another office to perform, which was the principal and, perhaps, the only one for which it was asked, and that was to instruct the jury that the law raises the presumption that the appellant had performed its duty in the employment of its serv*531ants; and that the appellee must overcome that presumption, by a preponderance of the evidence, before he was entitled to recover.
That the law raises such presumption, and that the burden was upon the appellee to overcome such presumption, by proving a duty and a breach thereof, are undisputed; hence, the appellant was entitled to have the jury so instructed. Pennsylvania Co. v. Whitcomb, Admr., 111 Ind. 212; Hard v. Vermont, etc., R. R. Co., 32 Vt. 473; Gravelle v. Minneapolis, etc., R. W. Co., 10 Fed. Rep. 711; McDermott v. Hannibal, etc., R. R. Co., 87 Mo. 285; Davis v. Detroit, etc., R. R. Co., 20 Mich. 105; Wood Master and Servant, sections 346 and 419; 3 Wood Railway Law, section 376; McKinney Fellow-Servants, section 89, and cases cited.
“The presumption is, that the master has performed his duty. This presumption the employe must overcome, for it stands, until overthrown, as a prima facie case. It must, therefore, be held that the appellant discharged its duty, unless the contrary has been affirmatively shown.” Pennsylvania Co. v. Whitcomb, Admr., supra.
None of the instructions given by the court cover this branch of the case, unless, as the majority of the court hold, that a general instruction that the plaintiff must prove the material allegations of his complaint, is all that a party is entitled to ask, and inasmuch as the writer thinks this instruction was no more than the appellant was entitled to have given, and states the law correctly, and was applicable to the facts in this case, it was error to refuse it.
The refusal of the trial court to give the eleventh instruction asked by the appellant, presents a question of law of vital importance to the employer, as well as the employe. The question presented is, whether or not the *532master, by the employment of men lacking in experience, becomes liable for injuries resulting to a coemploye through the want of skill of such inexperienced servants?
It is a fact that can not be successfully disputed, that, in the operation of railroads, as well as many other kinds of business, new and inexperienced men must, from necessity, be employed when men of experience can not be procured. And in almost every line of employment the employe must, at some time, be inexperienced.
Is the master guilty of negligence in making such employments? No more can a man ignorant of the construction or mechanism of a locomotive engine, or the means and manner of its operation, or of the running and management of any complicated piece of machinery, be expected to be able to construct and operate the one, or to run and manage the other, than that the mind of an infant, without training, culture and experience, should at once become that of a fully developed adult. There is, and must always be, a beginning to everything. And we know that man becomes proficient only from experience. From these premises, it naturally follows that every man, in adopting a calling, must at first be inexperienced. In the management and operation of large mills and factories, and in the running of railroads, where thousands upon thousands of men are employed, it is absolutely necessary to' employ, at all times, more or less inexperienced employes. Such employes are not, however, put to work in places and to perform duties requiring great skill and experience, but are placed in such places, and to perform such duties, as require little or no skill, and where the inexperienced may learn and in time become experienced and skilled. One entering the service of another, knowing that he must, by experience, acquire knowledge and skill, must and does *533assume the risks incident to such service; not alone those arising from his own inexperience, hut also those arising from the inexperience of those engaged with 'him in the same service, and who are so placed with him for the purpose of acquiring knowledge and experience.
The instruction under consideration, it seems to me, meets every requirement of the law, for the court was simply asked to instruct the jury that if, "in the reasonable and careful operation” of its railroad, there was no way by which a careful and intelligent man could acquire the experience necessary to render him a competent yard brakeman, except by actual service in that capacity; and that in such operation of its railroad it was necessary for the appellant to employ in that service men who had had no former experience as yard brakemen, then the appellee, when he entered appellant’s employ, assumed the risks incident to the employment, including those arising- from the inexperience of his coemployes who were working with him and getting experience in the same manner as he was.
If it is negligence per se to employ an inexperienced employe, we need pursue this inquiry no further, but if not, then upon what hypothesis can the master be held liable.
As a general proposition, it is stated that the master owes it as a duty to the servant to furnish him reasonably safe machinery, tools and appliances with which, and a reasonably safe place where, to work. And it is also said that he owes it as a duty to one servant to exercise reasonable care to select coservants who are careful and competent. While proper as general statements of the law, their application is varied and limited, for they can not apply where the work to be performed is such that reasonably safe machinery, tools, and appliances can not be furnished, or the place where the work *534is to be done, is necessarily an unsafe and dangerous place to work. But they are applicable where the master can furnish machinery, tools, and appliances of the kind which he uses in his business, which are reasonably perfect in their construction and make. The law does not attempt to impose upon him the duty of furnishing machinery, tools, and appliances, in the use of which, or a place where, in the performance of his duties, the servant can not be injured.
As McBride, J., in a very recent case, says: “The term ‘safe place to work,’ as thus used, is, of course, necessarily relative. It does not mean a place absolutely free from danger, as some vocations from their very nature, involve the constant encountering of danger.” Louisville, etc., R. W. Co. v. Hanning, Admr., 131 Ind. 528.
Neither does the law require the master to warrant that a servant will be careful and prudent in the performance of his duties, and not injure a fellow-servant. The most that is required of the master is that he shall use reasonable and proper care in the selection of his servants, selecting those only whom he believes to be competent to properly perform the duties required of them. The fact that an injury results to one servant from the carelessness of a fellow-servant, is not of itself sufficient to impute negligence on the part of the master, either in the selection of the servant whose negligence caused the injury, or in his retention. Louisville, etc., R. R. Co. v. Allen’s Admr., 78 Ala. 494, and cases cited; Wood Master and Serv., section 419, and cases cited in note 1.
The majority of the court confuse the term “inexperienced servant” with the term “incompetent servant.” They are not synonymous terms. A servant may be inexperienced and yet not incompetent. The evidence in this case does not establish the fact that an inexperienced *535person is incompetent to act in the capacity of, and to perform the duties required of, the servant complained of.
The duty imposed by the law is that a master shall be reasonably prudent in the selection of his servants, so that one servant may not be exposed to dangers other than such as naturally arise from the undertaking. If, in the reasonable and careful operation of a railroad, it is necessary to employ inexperienced persons to perform certain duties, and the company exercises reasonable care in the selection of such persons, it has done all that the law requires of it, and those entering such employment assume the risks of accident caused by the inexperience of such employes, for the reason that such risks are an incident of the service.
The instruction under consideration simply defines the risks .thus assumed, and should have been given. To announce a different rule is to overthrow the well settled principle established not only in this State, but in every other State of the Union, except those States where there are special statutes, that a servant entering the employ of a master impliedly assumes all the risks naturally incident to the service.
For these reasons, I am compelled to dissent from the views expressed in the opinion of the majority of the court.
The judgment should be reversed, with instructions to grant appellant a new trial.
Filed Jan. 10,1894.