ON MOTION FOR REHEARING.
PER CURIAM.The opinion in this case is not to be understood as holding that, in a case where the evidence is sufficient to carry to the jury the question of whether or not the tool or appliance in question is such as is commonly adopted and used by those in the same business, an instruction authorizing a finding for plaintiff must mention and require the jury to find against this proposition where another given instruction plainly requires the jury to do so. Nor do we hold that the burden is on the plaintiff to prove the negative of this proposition. This court is committed to the doctrine that it is not reversible error to give an instruction for plaintiff covering only the facts authorizing a recovery, where a separate instruction is given covering an independent matter of defense. [Johnson v. Springfield Traction Co., decided at this term.] The difficulty in the present case is that the evidence in this record, regardless of any burden on either party, is all one way and to the effect that the hammer in question is such as is generally used throughout that mining district. If the unbending *519test of negligence in the nse of tools is the ordinary usage of the business, then, when all the evidence in the case shows that the tool complained of is such as is ordinarily used, no negligence is shown and the jury cannot find that there is.
It is pressed on us that the plaintiff’s witness in describing the hammer in question said it was worn off almost to a point and that other witnesses, when asked about using a pointed hammer, said they had never seen or used a pointed hammer; therefore, it was shown that pointed hammers, like this one, were not in common use. This method of reasoning sticks in the bark and is a play on words rather than a sound legal argument. It is perfectly apparent to any one reading the evidence that this word was merely an exaggerated way of describing the condition of the hammer after much use. It is nowhere shown that this hammer was worn different in any material way from other hammers after being used to the same exent. In fact this hammer was selected for his own use by a fellow servant of plaintiff from a number of such hammers, likewise worn by use, and there is no pretense that such servant was negligent in selecting a hammer worn so different or more pointed as to be especially dangerous. There is no suggestion that it had chipped off, become one-sided, or shaped different from other hammers when much worn by use in breaking boulders— a use which would dull rather than shapen a “point.” The uniform evidence is that hammers of practically the same size, shape, weight and material as this one was when new are used throughout that district and are discarded only when worn to such an extent as to be ineffective for the work required and are discarded for that reason. They are not discarded because of any tendency to become more dangerous because of long use and wear in crushing particles of rock to fly in the face or eyes of workmen. If such is the common usage and custom throughout that mining district, then *520defendant cannot be beld to a bigber degree of care than tbis ordinary usage of that business. The motion for rehearing is, therefore, overruled.