I concur, but in yielding to the rule stated in the second headnote, merely acknoAvledge the binding force of precedent.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed.
The following opinion on motion for rehearing was filed June 8, 1906. Former opinion modified. Behearing denied:
Dueete, C.In an exhaustive and instructive brief, filed by the de- . fendant in error in support of his motion for a rehearing, *256exceptions are taken to the following extract from the opinion of Mr. Commissioner Jackson, ante, p. 249:
“The existence of negligence in providing a place for the deceased to perform the labor required of him was a question of fact for the jury, but it must be established by competent evidence and according to certain fixed rules of liability. What is'required of a master is that he use such machinery and appliances as are in common and general use. * * * Measured by the same rule, he would be required to furnish such facilities for the use aud operation of the machinery by his employees as are in common and general use, and, where the lack of such machinery and appliances or facilities for the use of the same is relied upon as a cause of action, the burden of proving such failure is upon the party seeking to maintain the action. Does the proof in this case fall within that rule? We think not.”
We are satisfied the above quotation does not contain a correct exposition of the law and that the opinion in that respect should be modified. The rule undoubtedly is that the master is not liable for furnishing dangerous machinery and appliances for the use of his servant, for all machinery is more or less dangerous. Employers are not insurers. They are liable for consequences, not of danger, but of negligence, and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. Weed v. Chicago, St. P., M. & O. R. Co., 5 Neb. (Unof.) 623. The rule that the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business, means that it is the test to disprove negligence, and not to prove it. The party charged with negligence disproves it by showing that the tools he employed were those in general use in the business, but the converse does not follow. The party charging negligence does not show it by showing that the machinery was not in common use. If it should be so held, the use of the newest and best machinery, if not yet generally adopted, could be adduced as negligence. Such evi*257dence should not generally, in the first instance, be admitted on belialf of the plaintiff, unless it tends to show that the method pursued Avas not only unusual, but more dangerous in itself than the ordinary one. Cunningham v. Fort Pitt Bridge Works, 197 Pa. St. 625. We think, on reexamination of the question, that this is the true rule, and that the opinion should be modified to that extent and, as thus modified, should be alloAved to stand.
The other matters discussed in the brief for a rehearing have, avc think, been fully met in the original opinion. We recommend that the opinion be modified as above set forth and the motion for a rehearing overruled.
By the Court: For the foregoing reasons, the opinion is modified as above set forth and the motion for a rehearing .
Overruled.