The following opinion on motion for rehearing was filed December 20, 1905. Rehearing denied:
Holcomb, C. J.This cause is now pending on its second appearance in this court. The error proceedings first taken to have reviewed the record and judgment obtained in the court belotv resulted in a reversal of the judgment and a remanding of the cause for further proceeding. New Omaha Thomson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 68 Neb. 71. The plaintiff on. the second trial in the court below again obtained judgment, and defendant brings error. In an opinion prepared by the commissioners, Avhich was adopted by the court, it Avas found that no prejudicial error had been committed and the judgment last obtained Avas accordingly affirmed. New Omaha Thomson-Houston Electric Light Co. v. Rombold, ante, p. 259. An application for a rehearing; has been made and it is complained that the rule of the “law of the case” *273Avas erroneously applied in the last opinion, thereby leaving unconsidered and undetermined vital questions presented by the issues and the evidence at the last trial. The plaintiff, a lineman in the employment of the defendant electric light company, received personal injuries Avhile at Avork in the performance of his duties, and his cause of action for damages is grounded on the alleged negligence of the defendant in permitting and causing to exist on its main lines of wires two short pieces or splices of.wire projecting therefrom, untaped and uninsulated, and that while engaged in his work he came in electrical contact with the exposed ends of said wires, receiving a shock which caused him to fall to the ground and to receive the injuries complained of. These splices of wire had been left in the condition they were in Avhen the injury occurred by removing or detaching service wires used to carry electrical currents for electrical lighting or power purposes from the main or feed wires to the structures occupied by the customers of the defendant company.
One of the principal defenses of the company was and is that it owed no duty to the plaintiff in respect of the alleged negligent construction and defective condition of its wires which produced the injury, since the character and nature of the plaintiff’s employment required of bim the duty of inspecting the wires of its lines where he was working and of discovering defects and repairing the same or reporting such defects to the company in order that the same might by it be properly repaired and the defect cured.
As bearing on the issue of the alleged negligence of the company and its duty toAvard its employees in that regard, the trial court at the first hearing instructed the jury, in substance, that it was the defendant’s duty to exercise ordinary and reasonable care to render it safe for the plaintiff to work on its poles and among its Avires strung thereon. That if such degree of care and caution required such wires to be insulated, then it was negligence to permit such wires or parts of them to be without proper insula*274tion and thereby subject its linemen to risk of injury. It is, in the opinion last filed on the first appeal, said that it is the undoubted- 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. It is held, however, therein, under the issues in the case at bar as to negligence, that where from the nature of the work, the contract of employment, or other facts and circumstances, the duty to make inspection and discover defects devolves upon the employee, the employer is not liable for an injury resulting to such employee from a defect which the latter, by reasonable inspection, would have discovered. To the charge of negligence at the first trial the defendant answered by a general denial, thus putting in issue not only the alleged defective condition of its electric light wires, but also its alleged duty to the plaintiff to properly tape the exposed wires and thus prevent the risk of danger to which the plaintiff was exposed. As to the alleged omission of duty on the part of the defendant to keep and maintain its wires in a reasonably safe condition, the decision unmistakably establishes the proposition that that question was one of fact which, under the pleadings and the evidence as they then stood, should have been submitted to the jury for its determination. On the retrial the answer was changed so that it was specifically denied “that it was the duty of this defendant, due to plaintiff, to insulate the wires described and complained of in the petition,” thereby narrowing the issue regarding the duty owing by the employer to the employee in respect of the uninsulated wires, and bringing the issue squarely within the rule announced in the opinion. The defective condition of the wires was conceded.
1. It is now contended that the undisputed evidence discloses that the defendant did not owe to the plaintiff the duty of inspecting the wires and repairing the defects complained of in order that the plaintiff might have a *275safe place to work at the place and under the circumstances where the accident occurred, and that the opinion last filed is erroneous in holding that the evidence was conflicting regarding the defendant’s duty in that regard. If there exists a substantial conflict in the evidence as to the nature of the work, the contract of employment and other facts and circumstances connected with the plaintiff’s employment, as we think does, then, under the decision on the first appeal, any course other than to have submitted such question to the jury for its determination would have been error to the prejudice of the party against whom the ruling operated.
If the evidence relating to corresponding duties and obligations of the respective parties concerning the defective condition of the wires is in the last trial substantially the same as on the first, as we think it is, then the propriety of the submission of the question to the jury for its determination as to on whom the duty rested, is foreclosed by the rule of the law of the case.
It is contended that there is no averment in the pleading of the plaintiff that the defendant had actual knowledge of the defect complained of, and that there would be no cause of action unless the defendant might by reasonable inspection have obtained such knowledge. The facts out of which the alleged negligence arises do not, as it occurs to us, bring the case within the rule nor the reason of the rule invoked by the defendant. If the defect existed as complained of, it was occasioned by the active agency of the master in the construction and operation of its electrical lighting and power system. It resulted from the negligent acts of its agents and servants in stringing its wires to be used in the prosecution of its business. There would bé no difference in principle had its wires, poles or fastenings been defectively arranged or constructed in the original construction of the plant and regarding which the master would be chargeable; with notice. It would, by the application of like principles, be chargeable with notice of the defective character of the work*276manship characterizing the method adopted in attaching and detaching service wires to and from the main or feed wires. It is not a defect occasioned by accident, nor growing ont of the ordinary use and wear of the system, nor yet because of some inherent defect in the materials and appliances obtained for use by the master, and regarding which he is required to exercise such care as the circumstances reasonably demand, to see that the material and appliances so furnished are reasonably safe for use and to thereafter maintain them in such reasonably safe condition. The defect complained of grew out of additions to, and alterations of the system and in the making of which the master is required to exercise reasonable care to the end that its employees be not exposed to unnecessary danger while working in and about the property in the prosecution of the master’s business. “It is well settled that a master who, himself, manufactures and supplies an instrumentality is chargeable with such knowledge of its defects as ordinary care during such manufacture; would have disclosed. Manifestly, the responsibility which is thus assumed to come into existence continues as long as the defects remain unremedied, irrespective of whether the instrumentality was or was not properly inspected after being put into use.” 1 Labatt, Master and Servant, sec. 152. It is argued that even if the testimony tended to show that it was the duty of the plaintiff to look for defects only when told to do so or when engaged in inspection work with a view to the discovery and remedying of defects as distinguished from the ordinary work of a lineman, it would not tend to show that the defendant owed the duty to the plaintiff alleged in the petition, because if it were true that plaintiff’s contract did not require him to look for defects in the wires unless specifically told to do so it would not necessarily follow that the law imposed on the defendant the general duty of a master to provide a safe place for his servant. It is, we think, settled by law of the case that the employer did owe to its employee the duty imposed by the law gen*277erally to provide the employee a safe working place unless the employer had been relieved of that duty by reason of the employee’s contract of employment, the nature of the work to be performed and other facts and circumstances. In other words, the rule of the law of the case now to be applied is that unless the plaintiff by reason of the character of his employment has assumed the duty of making inspection for the discovery of defects of the nature and kind complained of and repairing the same or reporting them in order that they may be repaired, then the duty which the law says rests generally on the master to provide a safe working place for the servant rests upon the defendant in the case at bar, and the failure to discharge such duty where damage resulted therefrom would constitute actionable negligence. Whether the plaintiff had in fact by reason of his employment and the nature and character of the same and other facts and circumstances assumed the duty of making his own inspection to discover defects of the kind complained of and therefore relieved the master of the duty ordinarily rest-' ing on him and which would have continued to exist except as the servant may have waived it, became of vital importance to both parties. The evidence relating to this question is of such a character as to require its submission to the jury and its finding must be regarded as conclusive.
2. It is argued that the opinion handed down on the second appeal is erroneous in holding that there was a conflict of testimony relating to the question whether the defects complained of were open and obvious, the contention being that they were according to the undisputed evidence and that therefore the risk was assumed by the plaintiff.
There is no serious dispute or conflict in the testimony as to the nature and character of the defects relied on as constituting negligence. The alleged negligence was with reference to the untaped splices of wire left on the main wires where the service wires were detached therefrom. The facts and circumstances as to the size and length of *278these pieces of wire, how left untaped or uninsulated, where attached to the main wires, the number and relative position of the main wires, the position of the untaped splices in relation to the pole and cross-arms on which the plaintiff was working, and the other related facts and circumstances were established by the evidence without substantial conflict or controversy. The question of importance in respect of the matter is what is the proper deduction to be drawn from the established facts, and whether the question is one to be ruled on as a matter of law or whether it is the province of the jury to say whether the defects were open and obvious within the meaning of the law. We incline to the view that the question was properly submitted to the jury and that its conclusion determines the matter. As tending to support the view that the defects were open and obvious, it may be said that the untaped splices extended about one inch from the main wires and were located about two feet from the cross-arms on the pole where the defendant was working and which he ascended and descended when performing the service he was engaged in; that in going up to the top of the pole these points were at one time on a level Avith his eyes and on the far side of the pole he was ascending. Had he noticed them, he must as an experienced lineman have appreciated the danger. The splices Avere on the main Avires attached to the second cross-arm from the top, and within four or five feet of the plaintiff’s face while' -he was at the top of the pole, and while engaged in the construction work he was sent to do. On the other hand, it may be said that he did not in fact see or discover these defects; that there were six or eight wires, one above the other, not in perfect alignment, making the apparent width of the obstructed vision Avlien looking up or down of about one and one-half or two inches. The exposed untaped Avires Avere discolored from age, giving them somewhat the same appearance as the insulated wires. In ascending and descending the pole, plaintiff’s attention was mainly directed to the cross-*279poles and wires on and between which he was climbing and his A'iew of the defects frequently cut- off by these obstructions. That before descending he looked doAvn betAveen the Aviros to see that the Avay AAras clear and in descending he had his face turned toAvard the cross-arms and Avas required to Avatch where he placed both his hands and his feet. It also appears that defects of the kind in question Avere unusual and that the plaintiff had never before in his experience observed any of that kind. With these facts before us, should it be said'that the plaintiff assumed as a matter of Iuav the risk as an open and obvious one? The defendant’s view of the matter is probably best expressed in a requested instruction, Avhich Avas refused, to the effect that “open and obvious defects in the sense of these instructions are those which could have been seen by the plaintiff while on the pole by the mere exercise of his sense of sight, and the danger of Avhich avouM Avhen seen be understood by him.” This test does not seem to us to be correct. Of course the defect could only have been seen by the exercise of his sense of sight. It is also true that they might have been seen by the exercise of the* sense of sight had attention been directed to them. But because they possibly might have been seen by the mere exercise of the sense of sight can it be said for that reason alone that they were open and obvious defects? In defining what Avas meant by the assumption by an employee of open and obvious dangers in connection Avith his employment, one court has said: “Risks Avhich are incident to the business must not be confounded with such as are denominated ‘obvious.’ The former sort comprises those which accompany or arise from the natural or usual method of conducting the particular business, and has more special relation to perils which attend the business generally, Avhile the latter include such as are manifest to the sense of observation, open and readily discernible, whether they arise from the nature of the business, the particular manner in which it is conducted, or the use of defective or unsafe appliances.” Stager v. Troy Laundry *280Co., 38 Ore. 480, 53 L. R. A. 459. If the risk is assumed on the ground that it is open and obvious it must be shown either that the employee had actual knowledge of the defect or that it was so plainly observable that he may be presumed to have had actual knowledge of it. The plaintiff had no actual knowledge of the defects complained of. Were they so open and readily discernible, so obvious as that knowledge of them will be imputed to him as a matter of law? Whether or not he knew or should have known of the defects under the circumstances shown in evidence is a matter regarding which reasonable minds might very readily draw different conclusions, and for that reason the question was properly submitted to the jury as one of fact for its determination.
3. The contention now made that the undisputed evidence establishes contributory negligence cannot be sustained. The rule of the law of the case has settled the contention to the contrary. When the case was first here for consideration on facts substantially the same, it was in express terms held: “That whether or not due care on the lineman’s part required that he see and avoid contact with the exposed splices was properly left to the jury.” Treated as an original proposition, we are satisfied this question was rightly left to the jury. Whether or not, under the circumstances,, the plaintiff exercised due care and caution in the performance of his work at the time he received the. injury complained of was a question peculiarly within the province of the jury. The facts and circumstances have been heretofore briefly stated. What has been said regarding the danger being open and obvious in a measure applies here. Because the plaintiff might have discovered the defects by the exercise of greater vigilance than then displayed or of extraordinary care and caution does not for either reason establish contributory negligence as a matter of law. He was not required to be on the alert and search for defects the existence of which he had no reasonable ground to suspect. Of course, he knew danger lurked in the wires among which he was *281working, and with which he was likely .to come in contact in the prosecution of his business, and as an experienced lineman it was his duty to exercise all reasonable care and caution in respect thereto; but the danger resulting in the injury was not one ordinarily incident to the business, and the risk of which he assumed when he engaged in the employment, unless it was open and obvious. Negligence on his part, which would defeat a recovery, would be the failure to observe that degree of care and caution which an ordinarily prudent man of like knowledge and experience would have exercised under similar circumstances. It can hardly be said that the evidence relating to the question is open to but one reasonable construction, and that against the plaintiff.
4. The alleged errors in the rulings of the trial court with reference to the instructions given to the jury and the purported release relied upon as a defense to the plaintiff’s demand have, we think, been sufficiently and satisfactorily considered in the opinion heretofore filed, and will not be at this time further discussed.
The judgment of affirmance is adhered to, and the motion for a rehearing denied.
Rehearing denied.