The following opinion was filed March IT, 1914:
Pee Cueiam:.The respondent’s attorneys move for a rehearing in this case, presenting for the first time to our notiee that the injury occurred after the enactment of eh. 485, Laws of 1911. The statute went into effect June 30, 1911, and the plaintiff was injured August 5, 1911. The statute abolishing the defense of assumption of risk and the so-called fellow-servant defense did not go into effect until September 1, 1911. Ch. 50, Laws of 1911. The decision as written rests solely on what is conceived to be the common law regulating the relations of master and servant'. It was considered that there was shown no case of concealed or latent danger and the work was being done by the employer in the ordinary and authorized manner, and upon the argument in this court the case turned on the question of the incompetence of the fellow-servant whose negligent act caused the injury. With the change made by ch. 485, supra, a different case might be made out even if the negligence of a fellow-servant contributed to cause the injury. That case, however, has not been tried. No jury has yet passed upon the question whether the place was as safe as the nature of the work would reasonably permit or upon any of the other questions which might arise under ch. 485, supra. It is therefore considered that the reversal already ordered may stand, but that the cause should be remanded for a new trial according to the law applicable thereunto.
By the Court. — It is so ordered.
The motion for rehearing was denied without costs.