On Motion for Rehearing.
The evidence showed that the dome cap was loosened by the joint efforts of plaintiff and Porter who used a Stilson wrench for that purpose. Appellee’s motion for rehearing contains the following:
“This honorable court, as well as the jury, found that one of the causes of the explosion and the consequent injury was the act of the appellee in loosening the dome cap. Granting this to be true, and granting that the appellee was guilty of contributory negligence as found by the jury in loosening this dome cap, then this honorable court cannot escape the proposition that the master was also guilty of negligence in assisting in loosening the dome cap. This proposition was entirely overlooked by this honorable court in its opinion.”
Appellee also quotes the following allegation contained in its petition filed in the trial court upon which the case was tried:
“That the defendant negligently caused, and permitted the cap on the dome of said car to be removed, loosened, and thus permitted said gas or other substance to escape into the air and yards of the defendant, where fire and live engines were in close proximity, and said gas became ignited and exploded as aforesaid.”
Following are some of the issues submitted to the jury, apparently intended to present the issue of negligence last referred to:
“Question 4. Did the defendant company or any one of its employés remove or cause or permit the dome cap on the car in question to be removed or loosened prior to the accident? Answer: Yes.
“Question 5. If your answer to question 4 is ‘No,’ you need not answer this question, but, if in the affirmative, then you will answer: Was such removal or loosening thereof negligence as that term is herein defined? Answer: Yes.
“Question 6. If your answer to question 5 is ‘No,’ you need not answer this, but, if in the affirmative, then was such negligence the proximate cause or one of the proximate causes of plaintiff’s injury? Answer: Yes.”
Our failure to discuss the findings of the jury upon the issues just quoted was induced by the’ following statement contained in the outset of plaintiff’s brief, submitted on original hearing, of the issues of negligence upoñ which he relied for a recovery:
■ “(1) Plaintiff contends that the defendant was guilty of negligence in that the yardmaster misled the plaintiff by telling him that the car was a car of unrefined naphtha or crude oil and causing him to go on the car under said misapprehension, when in truth and fact it was a car of casing head gasoline.
“(2) In permitting the car of casing head gasoline to be and remain in the yards while the same was spewing and escaping.
“(3) In permitting the car of casing head gasoline to. come into the yards of the defendant while the same was in said condition.
“(4) In having said car so constituted that the gasoline escaped from the same and the cap come off.
“Proof was offered under each and all of said claims, and will be submitted in statements under the separate counter propositions.”
In answer to questions 25 and 26, the jury found that prior to the time plaintiff went upon the tank car in question lie had had five or six years’ experience in handling the contents of tank cars where such contents was gasoline, and the following are additional issues submitted and the findings of the jury thereon.:
“Question 27. Why and for what purpose did the said Porter request said Clement to come to said car? Answer: To examine leaky car.’”
“Question 32. In requesting said Clement to come to said car, state whether R. G. Porter requested his presence as an expert in dealing with gasoline and other inflammable liquids? Answer: Yes.
“Question 33. At the time plaintiff went upon the car was he in the employment of the defendant? Answer: Yes.”
“Question 19. Did the plaintiff at any time while he was upon said car, either acting by himself or in conjunction with another, loosen the dome cap? Answer: Yes.
“Question 20. If your answer to question 19 is ‘No,’ you need pot answer this question, but if your answer is ‘Yes,’ then did the loosening of such dome cap cause or contribute to the subsequent explosion? -Answer: Yes.
“Question 21. If your answer to question 20 is ‘No,’ you need not answer this question, but if your answer is ‘Yes,’ then was such loosening or unscrewing of the dome cap the proximate cause or one of the proximate causes of plaintiff’s injury? Answer: Yes.
“Question 22. If you have answered that plaintiff, either by himself or acting with another, did not loosen the dome cap, you need not answer this, but, if you have answered that he did, then would the explosion have occurred but for that act? Answer: No.”
It thus appears that the jury found that plaintiff was employed by Porter in the capacity of an expert in handling gasoline and other like liquids, and question 19 and answer thereto, quoted above, imply a finding that the act of loosening the dome cap was chargeable to the plaintiff, and not to Porter, defendant’s agent; in other words, that plaintiff himself, and not Porter, took the initiative in that act and was responsible therefor. *413If there were any testimony in the record to the effect that, after employing plaintiff to remedy a dangerous condition, Porter, acting upon his own initiative and with the assistance of plaintiff, unscrewed the dome cap, or that Porter himself decided that the dome cap should be unscrewed and directed the plaintiff so to do, then it might be said that there was evidence sufficient to sustain the finding that the defendant, through Porter, was guilty of negligence, but we have found no such testimony in the record. In his motion for rehearing the following is quoted from plaintiff’s testimony upon his cross-examination by defendant’s counsel:
“I have no idea how many workmen the Gulf, Colorado & Santa F$ Eailway Company had in its shops, but they have a good many. They have shops and facilities here for repairing cars and plenty of men. At the time I was in the employ of the Gulf, Colorado & Santa Eé Eail-way Company I was under Bob Porter, working under his instructions, but my general occupation was that of local agent for the Producers’ Refining Company. I do not know why Mr. Porter asked me to come and tighten that leaky car instead of an employé. If they had had 150 men I would have gone up there. Within the knowledge of Mr. Porter I had been dealing with gasoline a long time. As to whether it is true that Mr. Porter asked me to come up there because of my special knowledge and dealings with gasoline, will say I think the real reason was because he had instructions from Mr. Gates’ office.”
In our opinion, this testimony was insufficient to support a finding that Porter rather than plaintiff instigated and directed the act of unscrewing the dome cap, and no other testimony has been cited by plaintiff, or found by us, which would support such a finding. The fact that plaintiff was “under Porter, working under his instructions,” falls far short of proof that Porter, after employing the plaintiff as an expert to remedy a dangerous condition, assumed charge of the work, and upon his own initiative undertook to unscrew the dome cap, and directed plaintiff to assist him in so doing. Furthermore, the findings upon issues 4, 5, and 6, copied above, were that some one of defendant’s employés removed, or .caused or permitted the dome cap to be removed, or loosened, and that such loosening of it was negligence, which was one of the proximate causes of plaintiff’s injury. In answer to those issues, the name of the employé who did that act, or permitted it to be done, was not given; in other words, those issues and findings thereon contained no statement that Porter, rather than plaintiff, who was likewise an employé of the defendant company, was chargeable with the act of unscrewing the dome cap. However, aside from that question, and assuming for the sake of argument that the findings of the jury in answer to issues 4, 5, and 6 were to the effect that the act of unscrewing the dome cap was properly chargeable to Porter rather than to-plaintiff, and that such act on the part of Porter was negligence, which was one of the proximate causes of plaintiff’s injury, yet we know of no rule of law that would excuse plaintiff from the consequences of the defense of assumed risk by reason of the fact that another servant, Porter, also assumed the same risk at the same time, in the absence of any testimony to the effect that Porter, as vice principal of defendant, specifically commanded plaintiff to unscrew or assist in unscrewing the dome cap, assuring him at the time that there was no danger in so doing, and that plaintiff obeyed said command, relying upon such assurance, and was excusably ignorant of the danger himself. In 18 Ruling Case Law, p. 548, the following is said:
“Knowledge, then, or opportunity by the exercise of reasonable diligence to acquire knowledge, of the peril which subsequently results in injury to the employé, is the foundation of the liability of the employer. Liability exists when the perils of the employment are known to the employer, but not to the employé; and no liability is incurred when the employe’s knowledge equals or surpasses that of the employer.”
After a statement of the general rule, in the same authority, that an employé does not assume the risk of injury from a danger when he acts upon the command of the master-, who assures him at the time that there is no danger of injury, the following is said, at page 703:
“By no means, however, is an employé, under all circumstances and at all hazards, bound to obey the command or accept the assurances of the employer. The peril may be so great that no prudent person would chance it. .Neither the employer nor his representative has a right to give such an order or assurance; and the employé has no right to act pursuant thereto; and if the employé receive an injury, knowing as well as the employer the danger to which he exposes himself, he will not be permitted to recover. The fundamental inquiry here, as elsewhere, involves the comparative knowledge of the parties. The fact that the employé acted pursuant to an immediate command is a cogent evidentiary fact bearing on this issue. Inasmuch as commands usually proceed from persons having superior knowledge, it may be presumed, in case an employé is ordered to do certain work, that the employer has superior knowledge of the perils attending performance; and in the absence of anything to the contrary, or where the case otherwise is in doubt, this presumption must prevail in behalf of the plaintiff. But, where the evidence does not leave the fact of knowledge on the part of the em-ployé a matter of conjecture and doubt, the presumption is unavailing.”
Such cases as M., K. & T. Ry. Co. v. Hamilton, 30 S. W. 679, Alamo Oil & Refining Co. v. Curvier, 136 S. W. 1132, and Lone Star Lignite Mining Co. v. Caddell, 134 S. W. 841, cited by plaintiff in support of his motion for rehearing, are not in conflict with the quota*414tions from Ruling Case Law shown above, but are in harmony with them.
Plaintiff having been employed as an expert to remedy a dangerous condition, the general rule imposing the duty upon the master to furnish a servant a safe place to work was not applicable. Magnolia Petroleum Co. v. Ray, 187 S. W. 1085, and authorities there cited.
In the motion now under discussion complaint is made that in our opinion on original hearing we were unfair to the plaintiff in failing to note the statement given by plaintiff on the witness stand that he was crazy with pain and did not notice what he said at the time he .was questioned by Mr. Greenwood, state fire marshal, the answers to which questions were introduced by the defendant. As clearly shown in our original opinion, we did not predicate our findings that plaintiff’s own testimony showed that he assumed the risk of his injury upon any other i evidence than his testimony given on the witness stand. We set out the impeaching statement merely for the purpose of a better understanding of plaintiff’s testimony while on the witness stand, and which we quoted; and it may be noted further in this connection that another written statement signed by the plaintiff soon after his injury, and given to defendant’s claim adjuster, was also introduced in evidence by the defendant to discredit his testimony on the stand, which was in substantial accord with the other document. But plaintiff testified on the stand ■that he Signed that statement without first reading it over and denied making the material portions of it.
We recognize the rule that it was the province of the jury to disregard both of those impeaching instruments and accept the .plaintiff’s testimony upon the trial in lieu thereof.
The motion for rehearing is overruled.