(dissenting) : I am constrained to dissent from the conclusion of the court. The syllabus embodies correct principles of law, but in my opinion the question whether the defendant exercised reasonable care and caution in requiring the use of the leaky hose was one of fact for the jury upon the evidence. The care required must be considered in view of the probable perils of the service, and the condition of the appliance in connection with its use and the place of . duty of the enginemen. They were in hazardous' service, and reasonable prudence required the exercise of corresponding care in furnishing them with appliances. Dangers from a defective hose must obviously depend *384upon the use made of it, its connection with other instrumentalities, and other circumstances. That a leak in a hose, used as this one was, would cause water to escape; that this was liable to become spray to be borne aside by the wind and cast upon near-by surfaces such as these steps; that ice would be formed therefrom in December in this climate; and that this would be. dangerous to those whose duty required the use of the steps, are consequences not so' rare, peculiar, improbable or abnormal as to preclude the jury from considering whether they would have been apprehended by the company if reasonable care and foresight had been exercised. (1 Labatt, Mas. & Serv. § 145.) Besides, it was not necessary that this peculiar combination of circumstances should have been foreseen, but only that danger to its servants should have been reasonably apprehended. (Siegel, Cooper & Co. v. Trcka, 218 Ill. 559; Railway Co. v. Parry, 67 Kan. 515.)
In Mason & O. R. Co. v. Yockey, 43 C. C. A. 228, the court of appeals passed upon this question upon a similar state of facts. It appeared in that case that a valve stem which, when turned by a wheel at the upper end, opened a valve below to let water pass out of the tank was out of place, and that a wooden plug had been substituted. This permitted the water to splash, producing spray which was carried by the wind upon the apron connecting the engine and tender, creating thereon an icy covering, upon which the fireman fell, and from thence fell out of the cab and was severely injured. The fireman alleged that the company was negligent in furnishing this defective appliance. The circuit court submitted the question of the negligence of the company to the jury, and the correctness of this ruling was presented for review. The court of appeals, Day, J., said:
“We can not say that the testimony made a case so palpably for the plaintiff in error that it should be resolved in its favor as a matter of law. Questions of this character must be decided upon the facts of each particular case. The company might have known that *385it was dangerous in the winter to permit water to escape on the apron, where the employee was constantly obliged to step, and particularly where the track was rough, as it is shown to be in the present case.” (Page 232.)
The principles upon- which the perplexing boundary between the duties of the judge and jury should be determined have been frequently stated by this court and need not be repeated here. Without quoting further from the opinion just cited, it seems to me fairly to illustrate and apply these principles. If this be true, the district court in the case at bar trespassed upon the functions of the jury: (Doyle v. The Chicago, St. P. & K. C. Ry. Co., 77 Iowa, 607; Oil City Gas Co. v. Robinson, 99 Pa. St. 1.)
A further review of the multitude of cases wherein the courts have considered this subject is not thought to be necessary in this dissent.