I dissent from the order denying a rehearing. The conclusion that Fontaine was the servant of independent contractors is fully sustained by the record, but it does not dispose of the case. Respondents charged negligence in the selection of a person to do this work who was unacquainted with the properties of distillate and its gases. Their contention is, that in any operation involving the use of dangerous means or the handling of dangerous explosives the employer of an independent contractor is bound to exercise care in the selection of a person who knows the danger and how to guard against it. They cite a number of authorities to sustain this proposition — cases in which the employer has been held liable for injuries caused by blasting, etc., by incompetent contractors.
In view of the evidence in this record, which shows that both Schultz and Fontaine were entirely ignorant of the danger involved in lowering a lighted lantern into a large tank recently filled with distillate, and still containing about a gallon of that substance in liquid form, and therefore necessarily surcharged with its vapors or gas, it is manifest that the question of negligence is not disposed of by merely holding *Page 461 that the work was being done by independent contractors, if it is true that the employer in such cases is liable for want of care in selecting a proper person to do the work. I think, therefore, that the cause should not be remanded for a new trial, leaving this question open. Its decision is necessarily involved in the ultimate determination of the controversy, and in my opinion, is necessarily involved in the disposition of this appeal.