Dissenting Opinion.
Reinhard, C. J.I very much regret my inability to concur in the conclusion arrived at by the majority of the court in the prevailing opinion. In my view there are several well marked errors for which the judgment should be reversed.
The gist of- the negligence and the proximate cause of the injury charged in the complaint are contained in the averments that Runyan ‘ ‘ negligently, carelessly and suddenly started, and ran said locomotive back towards and into said entrance, and over, against and upon the said plaintiff’s intestate, bruising, wounding and injuring him in such manner that he died in a few minutes thereafter from said injuries ; ” and possibly in the further averment, in connection with the foregoing, that there was no light on the end of the tender or loco*614motive, and that no notice was given Robinson by the ringing of the bell, blowing of the whistle or otherwise.
Ordinarily, the negligence of a fellow-servant to another servant in the same line of employment from which injury results to the latter is not sufficient to make the master liable in damages. The complaint in this case would not be good if it were not made to appear in some way that the appellant was guilty of negligence in connection with the negligent act of Runyan. Appellee’s counsel attempt to make the complaint meet this requirement by charging that Runyan was an incompetent servant, and by connecting the alleged negligent act of running the engine back to the entrance without signals with the incompetence of Runyan. It is not charged directly, however, that the negligent act of Runyan just mentioned was the result of his want of knowledge in the machinery or operation of the engine, or his lack of skill in handling it, or because of insufficient experience on his part, or mental or physical disability, insobriety, habitual recklessness or other elements that may enter into the question of incompetency. Assuming, however, that the complaint was good without such an averment, it still remains to be seen whether the evidence is sufficient to connect the alleged proximate cause of the injury, to-wit: the negligence of running the engine back to the entrance without signals, with the alleged negligence of the master in employing and retaining an incompetent servant to run the engine.
It was unquestionably the duty of the appellant to employ some one with sufficient knowledge and experience to perform the duties of “hostler,” which included the capacity to run the engine between the roundhouse and the main track so as to avoid all unnecessary accidents. The presumption is that the appellant dis*615charged this duty, and the burden of showing the contrary was upon the appellee. It was incumbent upon him to show, therefore, that Eobinson was incompetent to discharge the duties of a hostler, and that by reason of such incompetency the appellee’s intestate was killed as alleged in the complaint. Nor is this all. The appellee was further required to prove that the appellant knowingly employed or retained such incompetent servant and that the deceased was ignorant of the fact that the servant was incompetent.
Originally, Eunyan was employed, it seems, as an engine wiper, hut ultimately he assumed and performed the work of hostler, whose duty it was to take charge of incoming engines from the main track, to have the wipers clean the engines, wipe them and see that the engines went back at the right time.
The only evidence of incompetency relied upon is that Eunyan was not a regular engineer, or had not had any experience as a regular engineer or fireman. But it requires no professional engineer to be a competent hostler. That he had not sufficient experience and skill as a hostler, is not claimed or proved by any evidence. On the contrary, the uncontradicted evidence shows that Eunyan had had experience as a hostler, wiper and brakeraan, and there is nothing to show that he had not discharged his duties in these different employments in an acceptable manner. No complaint seems to have been made by Robinson or anyone else of the manner in which Eunyan discharged the duties of a hostler prior to the occurrence of the injury. The only act of negligence with which he is charged is the act which resulted in the alleged killing of Robinson. But I do not think this was any evidence of Eunyan’s incompetency, which cannot be inferred from the single act of negligence from which the injury resulted. Wood Master *616and Servant (2 ed.), section 419, p. 821; Id., sec. 432.
Moreover, the evidence totally fails to show or tend to show that if Runyan was incompetent the appellant had any knowledge or notice thereof, and that Robinson was ignorant of the same. The mere fact that an injury has been sustained as the result of a negligent act of a servant is not enough of itself to impute negligence to the master either in his employment or retention. Baulec, Admx., v. New York, etc., R. R. Co., 59 N. Y. 356; Moss v. Pacific Railroad Co., 49 Mo. 167; Davis v. Detroit, etc., R. R. Co., 20 Mich. 105.
As already indicated, the fact that Runyan was not a regular engineer was no proof whatever of the fact that he was incompetent to perform the duties of a hostler. The degree of care required of the master in the selection and. retention of servants varies, of course, with the exigencies of the particular services required, and I cannot understand what right the jury had to say that the appellant was required to employ a regular engineer to take the engines from the main track to the roundhouse and back, or that the fact that Runyan was not a regular engineer rendered him incompetent as a hostler.
There is then, in my opinion, no evidence of the incompetency of Runyan, and of the fact that the appellant had knowledge of such incompetency at the time of the injury.
Moreover, the. evidence totally fails to show or tend to show that Robinson was ignorant of the incompetency of Runyan if the latter was incompetent. Indeed, it tends to show the very opposite. Surely, if Robinson knew that Runyan was without experience or capacity in the line of employment in which he was engaged, Runyan assumed the risk of all injury that might result to him from the same if he continued in the service *617with Runyan acting as hostler. The evidence shows that Robinson was with Runyan while the latter was acting as hostler and wiper for the appellant, and must, therefore, have had some knowledge of Runyan’s fitness and capacity as a hostler.
It is true that Robinson was warranted in assuming that the appellant had exercised due care in trusting the duties of hostler to Runyan, and upon that hypothesis he had a right to act until the contrary was made known to him. But when the facts show, as they do in the present case, that both the master and the servant have equal knowledge of the fitness or unfitness of a fellow-servant, the servant who is subsequently injured takes the risk, unless the employer undertakes to give special direction, the proof of which devolves upon the servant alleging the same. Davis v. Detroit, etc., R. R. Co., supra, Haskin, Admr., v. New York Cent. R. R. Co., 65 Barb. 129.
Again, I do not think it has been shown that the incompetency of Runyan was the proximate cause of the death of Robinson. It may have been quite true that Runyan upon this particular occasion was negligent, but this negligence may have been perfectly consistent with his competency to perform the' work in which he was engaged. Nothing is better known than that even competent engineers occasionally omit to give the required signals, and are guilty of other acts of negligence. If this were sufficient proof from which a jury has a right to infer incompetency, there is, perhaps, not an engineer in the service who might not be thus proved incompetent.
There was in this case not a scintilla of evidence to show that the negligence of Runyan on this particular occasion was the result of any incompetency on his part.
Appellee relies largely upon the case of Ohio, etc., R. *618W. Co. v. Collarn, 73 Ind. 261, and insists that the facts of that case are almost identical with those in the case before us, and that the ruling in that case supports the appellee’s contention here. I do not so regard the case cited. It was there shown that the railroad company was guilty of negligence in permitting its orders respecting the sounding of the whistle and ringing of the bell to be violated by its engineers and retaining such engineers in its employment after notice of the practice of abandoning their engines to the firemen, which led to the placing of the engine in question in the hands of a careless fireman who was incompetent to manage the same, whereby the injury to the plaintiff occurred. In that case it was very properly held that the company was negligent in suffering its engine to be run by means of the careless and incompetent person so placed in charge of it. There is no evidence of that character in the case before us.
The evidence is defective in another particular. There is nothing to show how Eobinson was killed, or what he was doing at the time, or whether or not he was in the line of his duty, or was using due care to avoid the injury. There must be affirmative evidence to show that the deceased was free from contributory fault before the appellee can recover. Indeed, the presumption in such cases is that the fault was prima facie that of the deceased. Pittsburgh, etc., R. W. Co. v. Bennett, 9 Ind. App. 92.
“In such a case it is not enough to show that an accident happened and that death or injury resulted therefrom. Negligence is not to be presumed from the fact of an occurrence like that involved in the present case, the statement of which suggests its anomalous, exceptional and extraordinary character. This is not, therefore, a case in which mere proof of the accident casts *619upon the defendant the burden of showing the real cause of the injury. * * * Where an event takes place, the real cause of which cannot be traced, or is at least not apparent, it ordinarily belongs to that class of occurrences which are designated as purely accidental; and, in a case like this, where the plaintiff asserts negligence, he must show enough to exclude the case from the class of accidental occurrences.” Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404, 410.
Railroad companies are not required to insure the lives of their emjfioyes or to make accidents impossible, and there is no presumption against them except in case where the relation of carrier and passenger obtains. In the latter case proof of an injury usually establishes a prima facie case of negligence in favor of the passenger. This rule, it is needless to say, has no application to a case of negligence between master and servant.
Runyan testified that on the morning of the accident he took the engine out of the house; that he had taken it about ten feet from the door when one Welch came along by the engine and asked why he did not light the headlight; that he told Welch he thought it was light enough without it, but if he wanted it lighted he (Runyan) would run the engine back and light it; that he then reversed the lever of the engine, but before he did so he put his head out of the window and called, ‘ ‘ Look out! ” and then moved the engine about ten or twelve feet, when he heard some one halloo, and then backed the engine in the opposite direction; that he then got down from the engine and heard some one in front of the engine and thought Robinson was hurt, for he “kind of recognized his face.” He stated on cross-examination that he started the engine back for the purpose of lighting the headlight, and that Robinson had *620partly closed, the door and that the engine struck the door.
Filed May 3, 1895.Welch testified that he heard somebody and “hallooed to the fellow on the engine;” that immediately afterward he found Robinson lying between the tracks with his head toward the door and his feet toward the engine; that there was blood on the ground where he lay, and that he was carried into the round-house.
Appellee contends, and the majority of the court hold, that this evidence was sufficient to authorize the jury to draw the inference that Robinson was struck by the engine. Conceding this to be true, is there anything in this evidence to show the freedom of the deceased from contributory negligence ? If so, I have not been able to discover it. The evidence being absolutely silent upon the subject, there can be no inference that the deceased was free from contributory fault.
The judgment should be reversed.
Ross, J., concurs in the opinion of Reinhard, J.