On Petition for Rehearing.
Caldwell, C. J.Appellee in support of a petition for a rehearing argues: First, ths it in actions brought under the act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914) *525contributory negligence is in no case a complete defense; and second, that if in any case it is a defense, the question of its existence as a controlling factor is under all circumstances one of fact for the jury, and that under no circumstances is it a question of law for the court.
20. 21. Appellees’ first contention is based on certain provisions of the first section of the act, to the effect that liability against the employer may be established, the other circumstances existing, “when such injury or death resulted in whole or in part from the negligence of such employer, or his, its or their agents, servants, employes or officers,” etc. The argument is that, since the statute prescribes liability against the employer where the injury or death results only in part from the negligence of the employer, etc., a case wherein the negligence of the employer concurs proximately with the negligence of the employe to produce an injury to or the death of the latter comes within the act, and hence that the existence of contributory negligence is not a defense, where it concurs with the negligence of the employer to produce the injury or death. The decided cases recognize that contributory negligence is not under all circumstances eliminated as a defense by the act. Where not expressly abolished, it' remains available. See Vivian Collieries Co. v. Cahall (1915), 184 Ind. 473, 110 N. E. 672; Vandalia R. Co. v. Stillwell (1913), 181 Ind. 267, 104 N. E. 289, Ann. Cas. 1916D 258; Chicago, etc., R. Co. v. Mitchell (1915), 184 Ind. 383, 110 N. E. 680. The second section of the act recognizes the defense by providing that the burden of proof on that issue rests on the defendant. Said section provides, also, in substance, that an injured employe shall not be held to have been guilty of contributory negligence, where the injury complained of resulted from the employe’s conformity or obedience to any order or direction of the employer, etc. If the injury resulted from a conformity or obedience to the order, the effect of the act is that the employe shall not *526be held guilty of contributory negligence, by reason of the mere fact that he did conform or was obedient to the order. See Doan v. E. C. Atkins & Co. (1915),. 184 Ind. 678, 111 N. E. 312. His manner of carrying out the order, however, rather than the fact that he did carry it out, might not be characterized by due care, and he might be injured by reason of the manner in which he carried out the order, rather than from the mere fact that he carried it out. As applied to such a case, the act does not eliminate the defense-of contributory negligence. Vivian Collieries Co. v. Cahall, supra, pp. 489, 490. It is true that the effect of the statutory provision to which appellee directs our attention is not discussed in the decisions holding that contributory negligence is restricted rather than abolished as a defense by the act of 1911. Respecting such provision, it may be said, however, that the negligence of an employer may concur with the negligence of some third person, other than an agent, servant, employe or officer of the employer to produce the injury or death complained of. In such a ease, such injury or death might be said to result only in part from the employer’s negligence. ' The employer, however, in such a ease is not relieved from liability in actions ruled by the common law. Hoosier Stone Co. v. McCain, Admr. (1892), 133 Ind. 231, 31 N. E. 956; Cooley, Torts (2d ed.) 823; Fliege v. Railway Co. (1910), 82 Kan. 147, 107 Pac. 555, 30 L. R. A. (N. S.) 734, and note, 20 Ann. Cas. 276. In our judgment, the provision under consideration refers to such a case.
22. Appellee’s second contention is based on the seventh section of the act (§8020g Burns 1914), which is, in part, as follows: “.All questions of * * * contributory negligence shall be questions of fact for the jury to decide, unless the cause is being tried without a jury in which ease, such questions shall be questions of fact for the court.” Respecting such section, the’ Supreme Court, in Kingan & Co. v. Clements (1915), 184 Ind. 213, 110 N. *527E. 366, says: “We are of the opinion that §7 is simply a restatement of the law in relation to trials by jury, as it existed prior to its enactment.”
Other questions are discussed, hut we discover no reason why we should not adhere to our original conclusion. Petition for rehearing overruled.
Note. — Reported in 113 N. E. 465, 114 N. E. 96. Contributory negligence as defense, statutes affecting, in actions by servants against masters, 5 Ann. Cas. 633; 26 Cyc 1229. Conclusions of law, what constitutes, 31 Cyc 52-65.