I dissent: According to the findings of the superior court, Bevans was not simply the foreman of the gang of men engaged in removing the pole which fell. He was foreman of defendant's construction and repair department, and "all of said pikes and poles were under the charge and care of said Bevans, whose duty it was among other things to see that the same were kept in repair." As I understand the other findings, the two or three pike-poles furnished this gang of men were issued by Bevans as being all of them fit for use as braces. There is no evidence and no finding that any one of them was in better condition than the one used, and the fact that it was dull could only have been ascertained by a careful examination.
By this I do not understand that it required any prolonged or critical inspection of the point of the pike to discover its actual condition, but rather that it required some nicety of judgment to decide when one of these pikes had reached that *Page 777 degree of dullness to cause it, after being "forced into the pole," to slide along the grain of the wood and splinter out, instead of penetrating further when the weight of the pole was thrown against it. If it did require such nicety of judgment to determine that the appliance was unsafe, it is an unwarranted assumption to say the plaintiff and his fellow-servants were bound to take notice of the fact when the foreman especially charged with the custody and repair of the pikes had issued it for his use. I find no distinction in principle between this case and Wall v. Marshutz, 138 Cal. 522. Bevans here, as much as Walsh in that case, was specially charged with the duty of selecting the proper appliance for the work in hand, and when he delivered three pikes to plaintiff and his fellow-servants to be used in the work to be done, it was an assurance, not that among them they would find one or two fit for use, but that they were all fit for use, and, considering his position and his duties, they were justified in trusting to his judgment unless his mistake was apparent, and that does not appear.