The opinion
On Motion for Rehearing.
We have very carefully gone over the record, and reviewed our opinion, and especially have we read and reread the able and carefully prepared motion for rehearing of appellant. It convinces us that we should make ourselves a bit clearer in stating in our opinion the reasons for saying the case presented no issue of interstate commerce. This is necessary because of our brevity in statement on that issue, and the strong argument now presented by appellant on that contention, that appellee was employed in interstate commerce, and therefore assumed the risk. It would be a. very narrow and extreme construction of that law to so hold in this case that he was engaged in the work of interstate commerce.
Independent of whether such work was interstate commerce or not, the jury found that appellee did not assume the risk, and it was a question of fact for the jury. He could not have assumed the risk of appellant’s negligence in striking the chisel with a negligent degree of force. The grating was first struck with easy blows, but at last the blow that was struck with such force as that it drove the metal and caused it to break off and fly into appellee’s eye “was far more severe than the other blows.” Appellee could not know that a severe blow, more severe than was necessary, would be struck, and that he would be endangered by this act of negligence.
Now, unless such act was known to him, or of necessity would have come to him in the course of his employment, he did not assume the risk of appellant’s act in striking with a negligent'degree of force, and could not know beforehand of this act of negligence before it had taken place. It is admitted that appel-lee had never done this kind of work before, and never was ordered to do it, and manifestly he could not be acquainted with the danger incident to the method of work em *937 ployed at the time of Ms injury and could not assume the risk of appellant’s acts. Now it is manifest that appellee was not aware of the danger incident to appellant’s acts of negligence, and was not guilty of the’ assumption of the risk. The jury found that appellee did not assume the risk. So. regardless of the question of interstate commerce under the facts in this ease, appellee, as found by the jury, did not assume the risk of appellant’s negligence.
We do not think it necessary to discuss any other phase of the case, because nothing new is presented, and everything in this motion has now and heretofore been considered and passed on.
The motion for rehearing is overruled. ■