(dissenting). Tbe question in this case is not whether Hodge was acting in tbe service of the company at tbe moment'be killed John Ballard, or whether be was assigned to use tbe compressed air hose, tbe instrument that produced Ballard’s death. The law is tbe master is required to furnish tbe servant a reasonably safe place to work and reasonably safe tools and appliances and reasonably careful servants to work with. It is alleged in the petition that Hodge was not a careful person, but, on tbe contrary, was a reckless and dangerous person; that be possessed such habits for a long time, and tbe defendant knew that be was a reckless and dangerous person, and kept bim in its employment with that knowledge, and failed to warn tbe plaintiff’s intestate of bis dangerous character, and by reason thereof bis intestate lost his life. Tbe gravamen of tbe charge is that the defendant owed deceased tbe duty to furnish bim a reasonably safe person with whom to labor, but, mn tbe contrary, tbe master knowingly furnished bim a *835reckless and dangerous servant to work with, and by reason thereof the deceased lost- his life: And the truth of this is admitted by the demurrer. In my opinion a cause of action was stated in the petition. The court in its opinion, notwithstanding it was alleged in the petition that this compressed air hose was a dangerous instrument and the defendant knew that fact, which was admitted to be true by the demurrer, says that it seems inconceivable that if such an instrument was dangerous that defendant could have known it, that but one instance of such an injury has been recorded, and that was Curry referred to in the Texas case cited in the opinion. It is possible that other injuries of the kind may have occurred and defendant heard of them as well as Curry’s injury, but this is a question of evidence with which the court has nothing to do. The only question involved on this appeal was whether a cause of action was stated in the petition. In my opinion, if it had been alleged and proven in the cases cited in the opinion that the persons who threw the lump of coal, placed the torpedo apon the track, and played pranks with the compressed air hose had been doing so for a long period of-time, making it dangerous to their fellow servants, and that the defendant in each case knew of the fact and failed to discharge them and the persons injured had- been placed to work with them without any warning of the character of persons they were placed with, the results in the cases would have been different.
For these reasons, I dissent from the opinion of the court.