dissenting.
I am unable to concur in the opinion of the majority. The record in this case clearly shows that the plaintiff’s injuries were caused by his own negligence in using a stepladder, which the opinion concedes is an ordinary appliance, simple in its nature and construction; one which the testimony shows is customarily used in performing the particular work required of plaintiff, and on which he was engaged at the time his injuries occurred. The ladder was not defective or in any manner out of repair, and its use was entirely familiar to plaintiff, who was a skilled and. experienced mechanic. If he had used the ladder with ordinary care, the work required of him could have been safely performed. In such a case the great weight of authority is that the master is not liable for the servant’s injuries. Vanderpool v. Partridge, 79 Neb: 165; Marsh v. Chickering, 101 N. Y. 396; Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520; Standard Oil Co. v. Helmick, 148 Ind. 457; Cahill v. Hilton, 106 N. Y. 512; Borden v. Daisy Roller Mill Co., 98 Wis. 407; Sellers v. Chicago, B. & Q. R. Co., 87 Neb. 322. The majority opinion seems to be founded upon the rule announced in Lee v. Smart, 45 *380Neb. 318; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, and Sapp v. Christie Bros., 79 Neb. 701.
It should be observed that in Lee v. Smart, supra, it appears that the plaintiff was injured by reason of a defective wagon brake. He had called the master’s attention to the defect, and had been told that he could safely use the wagon because the streets were level. Afterwards the defendant sent the plaintiff across the bridge spanning the Missouri river at Omaha, with this wagon heavily loaded with green lumber. The plaintiff had never driven over the bridge, and therefore was not aware of its condition. When he reached a point near the Iowa end of the bridge, and while attempting to hold the wagon from descending a sharp incline, his team got beyond his control, and, as a result, his injuries occurred. It was held that the question of plaintiff’s contributory negligence was properly submitted to the jury, and a judgment in his favor was affirmed.
In Sapp v. Christie Bros., supra, defendants furnished the plaintiff with a light wagon for use in delivering goods and wares about the city of South Omaha. The wagon was not then, and never had been, provided with a brake. The neck-yoke which the plaintiff was required to use appeared to be somewhat old and season-cracked, and the “pole-eye” or leather attachment in which the end of the wagon pole is inserted was considerably worn and weakened. It appears, however, that the neck-yoke was repaired to some extent with baling wire, and the plaintiff was told that the defendants were rushed with business just then, but that, when they got up with their orders, they would have things fixed a little better. Plaintiff began work on Monday morning, when the foregoing conversation took place. He remained in his employment continuously until about noon of the following Thursday, when he attempted to deliver a load of feed to one McMasters. The shed or stable to which the delivery was to be made stood adjoining an alley extending through a block of ground, and connecting two streets. It was a *381public way, much used and traveled, but the surface of the ground was some 3.0 or 12 feet lower where the building stood than was that of the street whence the plaintiff approached it. Plaintiff sitting on the wagon, reined his team into the alley, and started down the incline. In some manner the end of the neck-yoke, to which the líame straps were attached, broke off while the wagon was descending, and that end fell down; immediately the leather “pole-eye” gave way, the pole dropped to the ground, struck an obstruction, bent and broke, and a piece of it flew upward and hit the plaintiff and knocked him from the seat, inflicting the injuries complained of. In that case a judgment for the plaintiff was affirmed. But it must be observed that the defects of which plaintiff complained were called to the attention of the defendants, and there was a promise to repair.
Tn Sioux City & P. R. Co. v. Finlayson, supra, the plaintiff was an engineer in the employ of the defendant com-, pany. He was furnished with a defective engine, and, by reason of the defects, an explosion occurred by which the plaintiff was severely injured. The defendant’s attention had been directed to the condition of the engine, and Hem had been a promise to repair. The plaintiff had judgment, which was affirmed by the supreme court, and it was said: “If an employer knowingly furnishes an employee defective machinery Avitli which to work, and which machinery, though dangerous, is not of such character that it may not be reasonably used by the use of care, skill, and diligence, and the employee, in obedience to the. requirements of the employer, uses and operates such dangerous machinery carefully and skilfully, believing there is no immediate danger, ahd ay hen it is reasonably probable it can be safely operated with such care, the, employee does not assume the risk, and if he is injured by such machinery without fault or negligence on his part, the. employer will be held liable for the damages resulting from such injury.”
It should be observed that the foregoing cases are ex*382ceptions to the general rule; and it is apparent that the facts of this case are not the same as those upon which the rule in those cases is founded. As I view the case, in order to affirm the judgment of the district court, the majority have taken an additional step in the direction of declaring the existence, in this state, of an employer’s liability law. Our legislature, so far, has not seen fit to abrogate the common-law rules by which the liability of the master to the servant have heretofore been determined. Until the adoption of what is known as an employer’s liability law, I feel that we should adhere to the common-law rule, as declared by the great weight of authority in this country. I am therefore of opinion that the defendant’s motion to direct a verdict in his favor should have been sustained.
For the foregoing reasons, I am of opinion that the judgment of the district court should be reversed.
Fawcett, J., concurs in this dissent.