Dissenting Opinion on Petition for Rehearing.
Ross, J.The appellant petitions for a rehearing, insisting first, that the court erred in holding that the evidence was sufficient to sustain the verdict, and second, that the court erred in holding that the evidence establishes the cause of action charged in the complaint.
The theory upon which the complaint, the material allegations of which are set out in the original opinion, proceeds is that appellant employed an incompetent servant and that as a result of the incompetency of said servant, the decedent, who was also an employe of appellant, was injured. The facts alleged show the decedent and Runyan to have been fellow-servants. Eor the *621mere negligence of Runyan, resulting in injury to the decedent, appellant would not ordinarily be liable. Of course, to this general rule there are exceptions, and the complaint before us seeks to allege facts creating an exception. The exception sought to be shown is that the servant Runyan was incompetent, and that as a result of his incompetency the decedent received the injuries which resulted in his death. In order that the complaint state a cause of action, it was necessary to allege therein, not only that Runyan was incompetent, that appellant knew of his incompetency, and that such incompetency was the cause of the negligent act or omission which brought about the injury, but also that decedent did not know of Runyan’s mcompetency, and further that the decedent was guilty of no negligence contributing to his own injury. All of these facts were necessary to the statement of' a cause of action.
In the case of Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, the court says: “It follows that a complaint, in such an action as this, must allege not only the violation of the master’s duties but such performance, of his own [the servant’s] duties as that it may appear that he has not been negligent in contributing to his injury, and that he has not assumed the risks incident to the defects or want of skill of which he complains,” and in Ames, Admr., v. Lake Shore, etc., R. W. Co., 135 Ind. 363, that “In actions of this character, therefore, it is necessary, not only to allege freedom from contributory negligence, but to allege such facts as show that the injury was not the result of some hazard of the service assumed by the servant,” and further that this latter requirement is “usually met by an allegation that the defect or want of skill complained of was unknown to the person injured.”
Upon the same principle rest the decisions in Lake *622Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75; Louisville, etc., R. W. Co. v Sandford, Admx., 117 Ind. 265; Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427; Ohio, etc., R. W. Co. v. Dunn, 138 Ind. 18.
In was incumbent upon appellee, in order that he recover, to show first, that the servant, Runyan, was incompetent ; second, that some negligent act or omission, which was the result of his incompetency, caused the injury which resulted in Robinson’s death; third, that the appellant knew that Runyan was incompetent for the service for-which he was employed, and was required by appellant to do; fourth, that the decedent, Robinson, did not knowt>f Runyan’s incompetency; and, fifth, that Robinson was guilty of no negligence contributing to his injury.
In the case of Ohio, etc., R. W. Co. v. Dunn, supra,, which was an action to recover damages for personal injuries received on account of the incompetency or unskillfulness of a co-émploye, the court says: “There is no question but that the appellee and the engineer were fellow-servants. The burden, therefore, rested upon the appellee, as to this element of the case, to establish, by a preponderance of the evidence, that the engineer was incompetent; that the injuries were caused or aggravated by the incompetency of the engineer; the absence of contributory negligence and of knowledge of such incompetency, as well as the presence of knowledge, by the company, of such incompetency. ”
I am of the opinion that the evidence in this case wholly fails to establish the facts necessary to entitle appellee to recover.
The only evidence relied upon to prove that the servant Runyan was incompetent to perform the duties of “hostler” in running engines into and out of the round*623house was that he was not an engineer, and that, in order to fit a man for that kind of work, he should have experience as a fireman the length of time which he should serve as such,, before he would be competent, depending much upon the man. It also appears that Runyan was employed as a “wiper,” but that on several occasions he had run engines in and out of their stalls in the round-house. That on this occasion he handled the engine in a proper manner, and just as an engineer would have handled it, is undisputed, for the witness Patrick Welch, an engineer, who was an eye witness to Runyan’s manner of operating the engine, and the only person who testified concerning the way in which it was operated, said it was operated ‘ ‘ all right, I should think it was managed as well as I could do it. ” * * * ‘ ‘I didn’t see anything wrong with the engine. I couldn’t havé moved it any different under the circumstances.”
While it may be true that, ordinarily, experience is necessary to qualify persons for the performance of certain duties requiring special skill, yet if a man without such experience is able to, and does, perform the duties as well as those who have had the previous experience; he is not incompetent simply because he has not had the previous experience. -Because it usually requires experience to qualify persons for the performance of certain duties, it cannot be said that a person who performs the duties without such previous experience is incompetent simply because he had not had that experience. Incompetency means inability to do or perform the work undertaken.
An incompetent servant is one who has not the required abilities necessary to do properly that which is required of him. Whether this inability is the result of lack of experience, because not endowed with such *624qualifications by nature, or because of the impairment of natural or acquired abilities, it is the same.
But before the master can be held answerable for the incompetency of a servant, it must be shown either that he knew of such incompetency or that he did not exercise reasonable care in the selection of such servant. Cincinnati, etc., R. R. Co. v. Madden, 134 Ind. 462.
There is nothing in the evidence to show that the appellant knew that Runyan was incompetent, neither is there anything to show that it did not use reasonable care in his selection.
If Runyan was incompetent, it is to be inferred simply from the fact that he was not a regular engineer, and had had no previous experience in operating engines, except what he had acquired while working for appellant in running the engines into and out of the round house, before the time when he started to back the engine, resulting in decedent’s injury.
However inexperienced or incompetent Runyan may have been, it is undisputed that on- this occasion, -at least, he started, operated and moved the engine as well as it was possible for an experienced and competent engineer to have done. If he started and operated the 'engine skillfully and properly, the fact that he had no previous experience is not sufficient to prove him to have been incompetent.
While it is admitted that Runyan did not blow the whistle or ring the bell before he started the engine, does that fact show that he was incompetent ? or was this omission on his part simply such negligence as might have occurred with the most experienced and competent engineer?
It requires neither skill nor experience to ring the bell or blow the whistle of a locomotive engine. Any child ten years of age, except it be physically disabled, *625is capable of doing both. It cannot be claimed, therefore, that Runyan was incompetent, either to ring the bell or blow the whistle. If he was competent, then the fact that he did not do so must be attributed to his oversight or forgetfulness.
That Runyan failed to ring the hell and blow the whistle on this occasion are the only facts proven to show negligence. And it is settled that proof of one single instance of negligent conduct is not sufficient even to show that a servant is a negligent servant.
The charge in the complaint is negligence on the part of the appellant, and the burden rests upon appellee to prove it, for negligence on the part of the master is not presumed.
In Louisville, etc., R. W. Co. v. Sandford, Admr., supra, it is said, ‘ ‘All the authorities agree that negligence on the part of the employer is not to be presumed, and that it rests on the plaintiff to aver and prove every fact essential to the existence of actionable negligence. Riest v. City of Goshen, 42 Ind. 339; Pennsylvania Co. v. Whitcomb, Admr., 111 Ind. 212; Summerhays v. Kansas Pacific R. W. Co., 2 Col. 484; Mobile, etc., R. R. Co. v. Thomas, 42 Ala. 672; State v. Philadelphia, etc., R. R. Co., 60 Md. 555 ; Davis v. Detroit, etc., R. R. Co., 20 Mich. 105; The Gladiolus, 21 Fed. Rep., 417; Cummings v. Nat'l Furnace Co., 60 Wis. 603; Belair v. Chicago, etc., R. R. Co., 43 Iowa 662.”
If the bare fact that on this occasion Runyan failed to blow the whistle or ring the bell, is not sufficient to prove him a negligent servant, much less is it sufficient to prove him an incompetent or unskilled servant, or that appellant was negligent in employing him.
Neither incompentency nor unskillfulness of a co-servant will be presumed in order to make either available as a ground of action, they must be proved, and merely *626showing the manner in which he did the particular act complained of, is not generally of itself sufficient to warrant such inference. Wood Master and Servant, .section 419.
The failure to blow the whistle or ring the bell, if it can be said that they were proper or necessary, which I do not pretend to decide, was nothing but an oversight on Runyan’s part, and they were not omitted by him either because he did not know how, or because it required skill or experience to enable him to do them. If it did not require skill or experience to qualify him to do these things, then their omission cannot be charged to his want of skill or experience.
The authorities are agreed that to enable a servant to recover from his master, for injuries received through the instrumentality of a fellow-servant, he is required not only to show that such fellow-servant was incompetent and that the master was guilty of negligence in employing him, but that the injury was the proximate result of the lack of qualification of such fellow-servant. Wright v. New York Cent. R. R. Co., 25 N. Y. 562; Kersey v. Kansas City, etc., R. R. Co., 79 Mo. 362; Ohio, etc., R. W. Co. v. Dunn, supra; McKinney Fellow-servants, section 79; Am. and Eng. Encyc. of Law, Vol. 7, page 843.
But if the injured servant knew of the incompetency of his fellow-servant, or had equal opportunities with the master to obtain information thereof, he cannot recover. Ames, Admr., v. Lake Shore, etc., R. W. Co., supra, and cases cited.
It is undisputed that Runyan and the decedent, Robinson, were fellow-servants together, and had been for several months prior to the happening of the accident which resulted in the latter’s death. No person was in a better position to learn, and none knew better than *627Robinson of the habit of Runyan to take the engines in and out of the round-house, and of his ability to do so properly. It was he who opened the doors to permit Runyan to take the engine out on this occasion.
Filed November 26, 1895.Under these facts, even if it can be said that Runyan was incompetent, the law assumes that Robinson knew it, and continuing to work with him, assumed that as a risk incident to his employment.
There is no evidence, therefore, in my opinion to sustain the verdict, and for that reason I think a rehearing should be granted.