Opinion by
Beaver, J.,Two assignments of error raise practically the same question: Did the plaintiff present such a case as required the court to answer the defendant’s point ''Under the law and the evidence, the verdict must be in favor of the defendant,” affirmatively, and having failed to do so, was the defendant entitled to judgment, non obstante veredicto? The point was refused and the motion for judgment n. o. v. was discharged.
Did the plaintiff’s case, as presented, show him guilty *381of contributory negligence in such a way as to compel the court to declare, as a matter of law, that he was guilty?
In the discharge of his duties as an employee of the defendant company, the plaintiff .was necessarily compelled to ascend telephone poles after their erection and to work thereon in attaching guy ropes, as he was doing at the time of the accident, and for other purposes. In order to provide for his safety while doing this work, he was furnished with, and had in his possession and use at the time of the accident, spurs fastened to his legs which could be driven into the pole and afford support for his person while at work. In addition to this, he had what was called a safety belt which was also attached to the pole but did not bind him closely to it, but enabled him to swing clear of the pole, in order to have a sufficient distance between him and it to enable him to work in fastening the ends of the guy wires which he was engaged in attaching to the pole at the time of the accident. It seems to be assumed by the appellant that at or immediately before the accident the plaintiff had detached his safety belt from the pole and, when the attempt was made by the defendant’s other employees to straighten the pole, which was several feet from the perpendicular, by the application of rope and tackle, some slip occurred by which the pole flew back and threw the plaintiff from the hold which he had with his spurs and he was injured by the fall to the ground.
The appellant seems to assume that, if the safety belt had been attached to the pole at the time of the "pull,” as it is called, the accident would not have happened. This is probably true as to the particular form which the accident assumed, namely, the fall to the ground, but it may be doubted, in view of the character of the belt and its object, whether an accident equally serious, or more so, might not have occurred by bringing the plaintiff into quick and injurious contact with the pole, and it by no means follows that, if the fall had been averted, the contact with the pole would not have been quite as severe, or more so, than the fall.
*382The question, therefore, it seems to us, .was for the jury, even upon this phase of the case, but we are not satisfied that it was not also for the jury as to whether or not the plaintiff was negligent in loosing the belt at or about the time that his work was finished. It was his duty to descend, when his work was done. He unloosed the belt, as he says, because he was about through with his work. He heard the order of the foreman “Pull!” about the time that the belt was unloosed. Was it before, or at the time of, or after, the unloosing of the belt that the order was given? If afterwards, had he time to refasten his belt to the pole before the pull was made? This is not by any means clear from the testimony, and we do not see how the court could have said, as a matter of law, that the plaintiff was guilty of contributory negligence in loosing his belt. It was for the jury, and there is no fault alleged with the charge of the court in the manner of leaving the question for their consideration.
There is no assignment of any portion of the charge for error and the single question, as raised by both the assignments, was, Could the court, as matter of law, say to the jury, or say after the finding of the jury, that the plaintiff was guilty of contributory negligence? We think the case was not such as enabled the court to say this, and it was, therefore, correct in refusing the defendant’s point, and also in discharging the rule for judgment, notwithstanding the verdict.
Judgment affirmed.