Dissenting Opinion.
Roby, J.The negligence alleged in the complaint must be taken as established by the verdict, and the sufficiency of the facts to support it in that behalf is not questioned.
It appears from the opinion that the defects complained of, both of which contributed to the injury and both of which were caused by the negligence of a single defendant, were latent and concealed ones. It is entirely well established that the employe is not required to search ,for latent and concealed dangers of which he has neither actual nor constructive notice. Salem Stone, etc., Co. v. Tepps (1894), 10 Ind. App. 516, 519.
It is also established that an employe assumes risks naturally and ordinarily incident to the service in which he engages. Wortman v. Minich (1901), 28 Ind. App, 31; Lake Shore, etc., R. Co. v. McCormick (1881), 74 Ind. 440, 445. Danger caused by the master’s negligence is not a necessary incident to the service, and the risk arising therefrom is not an assumed, incidental one. Barley v. Southern Ind. R. Co. (1903), 30 Ind. App. 406.
“The risks of the service which a servant assumes in entering the employment of a master, are those only which occur, after the due performance by the employer, of those duties which the law enjoins upon him.” Benzing v. Steinway (1886), 101 N. Y. 547, 5 N. E. 449. See, also, Stringham v. Stewart (1885), 100 N. Y. 516, 3 N. E. 575; *351Pantzar v. Tilly Foster Iron Min. Co. (1885), 99 N. Y. 368, 2 N. E. 24.
The employe also assumes risks arising from open and obvious defects. The danger arising therefrom must he either actually or constructively known to him, and he must also he charged with actual or constructive appreciation of the danger out of which the assumed risk arises. Avery v. Nordyke & Marmon Co. (1905), 34 Ind. App. 541. Nothing short of this can form the basis of an implied contract upon which the doctrine of assumed risk depends in this State. Wortman v. Minich, supra. It is said in the opinion that “appellee was in the best position to ascertain the condition of the wires and the pole, hut no superficial inspection would have disclosed the defective condition of the pole.” This statement is inaccurate as to facts. The appellee had never seen the pole until a moment-before he climbed it. He did not know how long it had been in place, or how long the insulation had been upon the wires. He climbed the pole by means of a ladder. It does not appear that he ever sanie a spur into it until he did so to do the work in the performance of which he was injured.Neither does it appear that there was anything in the resistance made by the pole to the settling of the spur which attracted his attention to its condition. The general verdict offers all inferences for appellee, and this court cannot say that the fixing of the spur in the pole at that time gave or should have given appellee notice of the rotten condition thereof. The appellee was not in the best position to ascertain the condition of the pole and wires. The rules regulating the respective duties of employer and employe have been so many times declared that it seems superfluous to repeat them.
“The appellee was not required on that occasion to make a special examination or critical investigation to ascertain whether the bent had been carefully or negligently raised, or whether it was then in an unsafe or dangerous position, before obeying the command of the master. When directed *352to do the act in the performance of which he was injured, he had the right to assume that the street commissioner, with his superior knowledge of the facts, would not expose him to unnecessary peril.” City of Lebanon v. McCoy (1895), 12 Ind. App. 500. See, also, Ohio, etc., R. Co. v. Pearcy (1891), 128 Ind. 197.
If an employe, reposing confidence, as he has a right to, in the prudence and caution of the employer, relies upon the adequacy of the implements put into his hands to work with, and upon the safety of the place assigned him to work, and sustains injury in consequence of the failure and neglect of the employer to disclose latent defects or perils, which the latter knew, or which he should have known hy the exercise of reasonable diligence the employe is entitled to remuneration for his loss. Bradbury v. Goodwin (1886), 108 Ind. 286; Krueger v. Louisville, etc., R. Co. (1887), 111 Ind. 51, and cases cited; Mitchell v. Robinson (1881), 80 Ind. 281, 41 Am. Rep. 812; Boyce v. Fitzpatrick (1881), 80 Ind. 526; Atlas Engine Works v. Randall (1885), 100 Ind. 293, 50 Am. Rep. 798; Indiana Car Co. v. Parker (1885), 100 Ind. 181; Louisville, etc., R. Co. v. Frawley (1887), 110 Ind. 18; Pittsburgh, etc., R. Co. v. Adams (1886), 105 Ind. 151; Pennsylvania Co. v. Whitcomb (1887), 111 Ind. 212; Stringham v. Stewart, supra; Pantzar v. Tilly Foster Iron Min. Co., supra; Bean v. Oceanic Steam Nav. Co. (1885), 24 Fed. 124; Postal Tel. Cable Co. v. Likes (1907), 225 Ill. 249, 80 N. E. 136.
“It is equally true that the master is hound to use ordinary care and diligence in providing reasonably safe and suitable machinery and appliances for his servants, and is liable for injuries resulting from his failure to perform this duty; He is also chargeable with notice of the natural tendency of machinery and implements to wear out and decay with use and age, and is therefore required to exercise an active and continuing supervision and vigilance to maintain them in a reasonably safe condition. * ■ * * A servant may rightfully act upon the presumption that the *353master has performed his duty in supplying proper machinery and appliances unless he has notice otherwise, or facts are patent and come within the reasonable range of his observation, which would excite the apprehension of a reasonably cautious person, and put him upon inquiry. * * * While a servant may have an opportunity, he is not bound to make a critical examination of the condition of an implement or item of machinery before using it, to ascertain if it contained any latent defects, unless so required by the terms of his employment.” Louisville, etc., R. Co. v. Berry (1891), 2 Ind. App. 427, 430. See, also, Indiana Car Co. v. Parker, supra; Bradbury v. Goodwin, supra.
In the statement oi the opinion that “the exercise of ordinary care upon the part of appellant would have disclosed no more than the exercise of the same degree of care by the appellee,” the court usurps the functions of the jury, forgetting that an appellate tribunal is not at liberty to weigh evidence and does not approach the issue as the trial court does, but is bound to take the facts, as they have been determined. The opinion also ignores the superior knowledge of appellant and appellee’s actual ignorance of the conditions by reason of which he was injured. The character of the defects complained of furnishes the foundation for the conclusion reached by the jury and prevents this court from justly saying, as a matter of law, that it was appellee’s duty to have known of the danger to which he was subjected. The master’s duty is to furnish a safe place and safe appliances. It requires appellant to take notice of the tendency of wood to decay, and of the effect of exposure upon the perishable material with which it chose to insulate the wires in question. It knew the time during which such processes had been going on, and was bound to take notice of them, and duly and reasonably to guard against them. Appellee was under no duty, as before stated, to search for latent and concealed defects, and *354had no information tending to put him upon inquiry. He protected himself, by means of a safety-belt, from falling to the ground. A slip, caused by the defective pole, was productive of a painful injury, he thereby being brought in contact with a wire negligently allowed to remain without sufficient insulation. Both causes which contributed to his injury were created by the negligence of a single defendant, and the finding of the fact against such defendant ought, so far as the question of proximate cause is concerned, to be reasonably safe from the logic of this court.
Appellee did not inspect or examine either the pole or insulation upon the wires. He did not know that there was any defect in either, nor how long the pole had been in use, nor how long the insulating material had been upon the wires. The statement in the opinion “that appellee admits that the foreman told him before he began the work that he should work the wires as if they were hot,” is not an ingenuous way of stating that appellee’s attorney asked him upon his original examination, the following question: “Now what did he say to you or what was said to you there, if anything, about working the wires ? A. Why, Mr. Eisher said to work those wires as if they were hot.”
It is not suggested by appellant that appellee did not comply with the order thus given. No detail of his procedure is criticised. He unfastened the outside wire and took hold of it with his right hand to push it off of the cross-arm. The wires made an angle at this pole, and considerable force was required to remove it. While exerting such force, the spur on his left foot tore out of the pole, causing him to lose his balance and to bring his left hand in contact with a second wire, thereby forming a short circuit and instantly depriving him of consciousness. Three fingers were burned off of one hand and two off of the other, and he was otherwise injured.
Appellant’s negligence formed an element in the injury complained of, and takes the occurrence out of the category *355of mere accidents. An accident, in the sense in which the term is used, is an occurrence to which human effort does not contribute. “A pure accident, where there is an absence of negligence, will not supply a cause of action, but where the accident is attributable to the negligence of the defendant, it is otherwise.” Nave v. Flack (1883), 90 Ind. 205, 210, 46 Am. Rep. 205.
I am convinced that a decision which relieves owners of electric light and other poles of a similar nature from all responsibility in cases of this sort ought not to be made, and that the petition for a rehearing herein should be sustained.