This judgment should be reversed for the admission over the' defendant’s objection of the evidence of the witness Ripley to the .effect that other hoods upon the defendant’s line were defective,.
*13The court, improperly submitted to the jury the question of defendant’s negligence in furnishing improper gloves, inasmuch as the deceased had the better opportunity of ascertaining whether the gloves were defective.
The judgment should also be reversed as against the weight of evidence. Defendant has been charged with negligence in the killing of plaintiff’s intestate where the manner of the killing is at the best speculative. The verdict has been reached upon the testimony of a brother-in-law whose evidence is not sufficiently credible to sustain a verdict in view of the testimony which he gave upon the former trial. The report of the deceased upon the morning of the accident failing to disclose any defect in the lamp at which he was killed the night before either negatives the evidence that the lamp was not burning the night before or shows negligence on the part of the deceased in failing to discover the defective lamp. The company should not be charged with notice of a defect whicli it was the duty of the deceased to report and which he failed to report. Moreover, it has not been proven that the failure of the light to burn the night before was due to any defect which caused the decedent’s death upon the following night.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.