The following opinion on rehearing was filed January 6, 1904. Judgment below reversed:
4. Instruction. An instruction which, in effect, directs a finding on an issue upon which the evidence is conflicting, is erroneous. Albert, C.This case is before us on rehearing. The former opinion is reported ante p. 54, and contains a statement of the issues and of the questions presented for review. By reference to that opinion it wall be seen that the defendant is a corporation, and maintains a system of wires for the purpose of carrying electricity for lighting and other purposes; that the action is for damages for personal injuries sustained by the plaintiff while in the employ of the defendant, and, in the course of his employment as a lineman; that the injuries were occasioned by his coming in contact with the ends of spliced wires, which ends, it is alleged, were not insulated. Negligence is the gist of the action, and the negligence upon which the plaintiff bases his right to recovery is the omission of the plaintiff to insulate the ends of the wires with which he came in con tact.
We are satisfied with the conclusion reached in the former opinion upon every question, save that relating to the eighth paragraph of the charge to the jury, which is as follows: “It was the duty of the defendant company to exercise ordinary and reasonable care to render it safe for the plaintiff to work on its poles and among the electric light wires. If such a degree of care and caution required said Avires to be insulated, then it was negligence in the defendant to permit said wires, or a wire or part of a Atóre, to be without proper insulation, and thereby subject its linemen to risk or injury; and if by reason of a want of such insulation, a lineman, without fault on his part, suffers injuries, then the negligence of the company would be actionable and the injured lineman could recover proper damages.”
*73It is undoubtedly a general rule of law that the employer is bound to exercise reasonable care not to expose his employees to unreasonable or extraordinary danger by putting them to work in dangerous places or with dangerous tools and appliances. 2 Thompson, Negligence, 972; Wood, Law of Master and Servant, sec. 398. This rule not only makes it the duty of the employer to provide suitable tools and appliances in the first instance, but also to use all reasonable care in keeping them safe and serviceable, and to make seasonable inspection of the condition thereof with that end in view. Union Stock-Yards Co. v. Goodwin, 57 Neb. 138; Brann v. Chicago, R. I. & P. R. Co., 53 Ia. 595, 36 Am. Rep. 243; Ford v. Fitchburg R. Co., 110 Mass. 240; Shanny v. Androscoggin Mills, 66 Me. 420; Solomon R. Co. v. Jones, 30 Kan. 601; Chicago & N. W. R. Co. v. Jackson, 55 Ill. 492, 8 Am. Rep. 661. The foregoing rule is subject to many qualifications and exceptions, one of which is that where, from the nature of the work, the contract of employment, or other facts and circumstances, it is the duty of the employee to make inspection and discover defects in the tools or appliances furnished him, the employer is not liable for an injury resulting to such employee from a defect which the latter, by reasonable inspection, could have discovered. McGorty v. Southern New England Telephone Co., 69 Conn. 635, 61 Am. St. Rep. 62; 20 Am. & Eng. Ency. Law (2d ed.) 142, and cases cited. In other words, under such circumstances, it is no longer the duty of the employer to protect the employee against such defects, but of the latter to protect himself.
One of the theories of the defense in this case, abundantly supported by the evidence, is that it was a part of the duty of the plan tiff as a lineman, from the nature of his work, his contract of employment, and the facts and circumstances in the case, to inspect the wires, among which he worked, for defects and imperfections, including such defects as those alleged to have caused the injury in question; that a reasonable inspection would have disclosed *74such defects; and that he failed to make such inspection. In other words, one of the issues.of fact in the case is whether it was the duty of the defendant to protect the plaintiff from the defects in question, or whether that duty devolved upon the latter himself. The instruction referred to is to the effect that such duty devolved upon the defendant, and amounted to the direction of a finding against the defendant on that issue. That, in view of the evidence, which, to say the least, is sufficient to entitle the defendant to the submission of that issue to the jury, is erroneous. We have not overlooked the qualification in the instruction that the injury 'must have been without fault on the part of the plaintiff. But it is obvious, we think, that this was not intended to qualify or limit the duty imposed' upon the defendant by the first sentence, but rather to cover the theory of contributory negligence. As thus qualified, the instruction still assumes that the duty devolved upon the defendant, which was one of the questions for the jury.
We have examined the other instructions in this case, especially those relating to contributory negligence and the assumptions of risks by an employee, and find nothing that would warrant us in holding that the error hereinbefore pointed out is cured by any other portion of the charge.
The plaintiff contends, however, that the defects- in question were in the original construction of the line, and were not such as the plaintiff could be expected to look for or discover. But the evidence is amply sufficient to sustain a finding that it was the duty of the linemen to look for and discover, not only defects which arose from accident or wear and tear, but defects of every character, including those in the'original construction. Hence, whether the defects which caused the injury were in the original construction, or originated afterward, is immaterial for present purposes.
It is recommended that the former judgment of this court be vacated, that the judgment of the district court *75be reversed, and the cause remanded for further proceedings according to law.
Barnes and Glanville, CO., concur.By the Court: For the reasons stated in the foregoing opinion, the former judgment of this court is vacated, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.
Reversed and remanded.