On Petition eor, Rehearing.
Caldwell, C. J.14. — Appellant in its brief, in support of a petition for a rehearing, contends that our construction of the second sentence of §3 of the act of 1911 (Acts 1911 p. 145, §8020a Burns et seq. 1908), as indicated by our original opinion, is erroneous. That sentence is set out in the original opinion, and is to the effect that in actions brought under the act, the employe involved shall not be held to have assumed the risk of defects in the place of work, tool, implement or appliance furnished him by the employer, where the employer had actual or constructive knowledge of the defect in time to.have made repairs, or to have discontinued the use of such defective place, etc., by the exercise of reasonable diligence.
Appellant assumes that we held that in all cases brought under the act wherein negligence is predicated on defects in place, etc., the prior right of the employer to appeal to the principle of assumed risk to defeat the action is, by the language of that part of the enactment under consideration, eliminated. Appellant’s argument is that such language, literally *701interpreted, is to the effect that the right to resort to the principle of assumed risk is' destroyed only in those cases where the employer fails to establish that he did not have knowledge actual or constructive as aforesaid, and that in all other cases, as where the employer does establish his want of such knowledge, the potency of the principle of assumed risk remains unaffected. It may be conceded that, as a mere theoretical proposition, appellant is right in its construction of the provision of the statute now under consideration, considered alone. Such concession, however, if made, does not militate against anything said in the original opinion. As bearing -on the statutory provision now under consideration, together with certain provisions of the second section of the act, we there said: “As negligence on the part of the employer is the essence of liability under all the provisions of the act, the question of assumed risk becomes unimportant in its relation to inherent'or apparent dangers or hazards, and likewise in its relation to defects in place, tool, implement, etc., unless such dangers, hazards or defects are the result or exist by reason of the employer’s negligence. The question of assumed risk becomes unimportant under the circumstances indicated, for the reason that the absence of negligence on the part of the employer would defeat any action brought under the act, and as a consequence there would be no occasion to resort to the defense of assumed risk to that end.”
15. Amplifying what is there said, where the employe, or the, complaining party, in case the employe’s injuries resulted in death, has proved a defect in the working place, toojl, implement or appliance furnished by the employer for the use of the employe, and the consequent injury, a prima facie case has been made against the employer. Deer v. Suckow Co. (1915), 60 Ind. App. 277, 110 N. E. 700.
*70214. By the express provisions of §3 of the act (§8020c Burns 1914) the b'urden of proof on the question of the employer’s knowledge, actual or constructive, is on the employer. If the employer establishes the absence of such knowledge on his part in time to have made repairs, etc., he thereby successfully meets the charge of negligence made against him, and he thereby also defeats the action, because negligence is its gist. It therefore seems to us that a contention that, as applicable to such situation the principle of assumed risk is not' eliminated by the statute, but remains available to the employer, is without práctica! value even though theoretically it be well grounded. Under appellant’s construction of that part of the statute now under consideration, the employer may have recourse to the doctrine of assumed risk under some .circumstances where the complaining party has failed to prove that the eihploye did not have either actual or constructive knowledge of the defects, or that he did not understand, and that he was not chargeable with an appreciation of the perils arising therefrom. Appellant so contends, for the assigned reason that under some circumstances the-employer’s right to resort to such principle is not eliminated by the statute. Appellant concedes that such circumstances are confined to a case where the employer has proved his want of knowledge as above indicated. It thus appears, if appellant’s contention and concession be considered together, that that status of the case which, when reached, defeats the complainant’s case, also gives rise to a right to resort to the principle of assumed risk to defeat it; that in order that the employer may appeal to such principle to defeat the action, he must first by his proof defeat it on other grounds. We therefore conclude that appellant’s contention, if well *703grounded, is without any practical value. As applicable here, we quote the following from note to Scheurer v. Banner Rubber Co. (1910), 28 L. R. A. (N. S.) 1207, at page 1216: “In every case involving the liability of the master for an injury to a servant, it is elemental that there can be no recovery unless the master has been negligent — has been guilty of some breach of duty owing by him to the servant; at least, there can be no recovery in the absence of some special contract or statute expressly providing therefor. Consequently, if the servant fails to show that the master has been negligent, he cannot recover; not primarily because he has assumed the risk of the injury, or in any way waived his rights, or failed to exercise due care, but because the master has incurred no liability. If the servant fails to show some breach of duty on the part of the master, he fails to establish even a prima facie case. In most, if not in all, employments, some dangers remain after the master has fulfilled his full duty in furnishing the place, appliances, and tools, and in all other ways; and it is a very convenient mode of expression to say, as the courts almost universally do, that the servant assumes the risk of all such dangers, but it seems illogical, at least, to say that the servant’s inability to recover for injuries due to such dangers rests upon his assumption of the risks thereof, since the master’s non-liability would appear to rest peculiarly upon the absence of any breach of duty upon his part. In view of this, it is unfortunate that some courts have considered it necessary in some cases to discuss at length both the question of assumption of risk and of contributory negligence or lack of due care on the part of the servant, when they have expressly found that the master was not negligent.”
In the original opinion we endeavored to distin*704guish between the principle- of assumed risk and. the doctrine of contributory negligence, as those terms are used in and affected by the act. Appellant does not take issue with our deduction as drawn, and concedes that the third sentence of §2 of the act, supra, if it were considered alone, is broad enough to eliminate from causes brought under the act the defense of assumed risk as to all dangers inherent or apparent in the employment. Such third sentence is as follows: “In actions brought against any employer under the provisions of this act for the injury or death of any employe, it shall not be a defense that the dangers or hazards inherent or apparent in the employment in which such injured employe was engaged, contributed to such injury. ’ ’ Appellant contends, however, that such sentence must be construed with the second sentence of the third section, set out in the original opinion, and that, when so considered, the latter modifies or limits the former, to the effect-that, as to inherent or apparent dangers growing out of defects in the place, tool, appliance or equipment, the latter provision governs.
Assuming for purposes of discussion that the latter provision is in modification or limitation of the former, rather than a concrete application of it, as stated in the original opinion, and, as a consequence, that in the relation of employer and employe there may be inherent and apparent dangers other than those growing out of place, tool, appliance or equipment, then we are simply brought to the proposition first above discussed; that is, in actions predicated on defects in place, etc., the employer defeats the action by proving that he did not have knowledge, etc., and if, in cases where he does not have knowledge, the principle of assumed risk theoretically remains available, the *705right to resort to it is an empty right, as the action is otherwise defeated.
We have carefully considered other questions presented in the petition for a rehearing, but find no reason why we should depart from our original conclusion.
The petition is overruled.
Note. — Reported in 113 N. E. 244, 114 N. E. 94. Master and servant: distinction between assumption of risk and contributory-negligence, 18 Ann. Cas. 960. See under (4, 6, 7, 10, 13) 26 Cyc' 1180; (8) 26 Cyc 1450; (12) 26 Cyc 1177, 1226.