On Application for Rehearing.
(June 7, 1915.)
Richards, J.The original opinion in this case, announced on February 23, 1915, having been by a divided court, and the application for rehearing having been thoroughly argued in briefs filed by counsel, we have given a reexamination to the questions involved. Such reexamination has not resulted in any different conclusion than that which was heretofore announced in this case.
A majority of the court are of opinion that evidence of a custom, usage, habit or practice of using the guy-wire as an additional support to workmen, generally followed and known to the defendant, or practiced for such length of time that it should by ordinary care have been known to it before the fatal injury, is competent evidence in this case. We understand that there is a material difference between custom and usage, habit or practice. Usage, as has been well said, does not imply im*248memorial existence or general prevalence, as does custom. In the consideration of this case we have not used the words “usage” or “habit” or “practice” as meaning the same thing as “custom.” General custom may itself come to have the force and effect of law. In many cases evidence of usage or habit or practice may be admissible to show whether the defendant has been guilty of negligence or the plaintiff guilty of contributory negligence. A good illustration of this is found in a decision by the circuit court of Lucas county, entitled The L. S. & M. S. Ry. Co. v. Botefuhr, Admr., 20 C. D., 67. That decision was concurred in by all the judges sitting, namely, Haynes, Parker and Taggart, and was affirmed by the supreme court, without opinion, 78 Ohio St., 413. The syllabus and the opinion in the case, considered together, show the varying uses of the words “custom” and “habit.” It was held in that case that evidence of the habit or custom of the conductor representing the company was admissible not only upon the question of whether the company was in the exercise of ordinary care, but also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence or exercised ordinary care. Parker, J., in the course of the opinion, at page 72, uses this language:
“The evidence in the case, we should say, is hardly sufficient to establish a custom having the force of law, and perhaps not one having the force of an established and promulgated rule binding upon all employes of the company, at all times and places. But we think it is quite sufficient to show *249this habit in the performance of the work upon the part of this conductor and this train man when working together in the making up of that train.”
The court says this, on page 71: “As to.the admissibility of evidence of this character we think there can be no question.”
And the court cites the following earlier decisions establishing that doctrine: Carl v. Pierce, Recr., 10 C. D., 711, affirmed without opinion, 64 Ohio St., 578, and Pennsylvania Co. v. Mahoney, Admx., 12 C. D., 366.
It is said in 12 Cyc., 1079: “What is negligence and what is due care may depend upon the customs and habits of people in the same place and under similar circumstances.” We suppose it to be well-established law that custom or usage can not excuse or justify a negligent act, but may be evidence on the question as to whether or not the act was negligent; or to put the same thing in other phraseology, what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not. Of course, the ultimate question in this case was as to whether, under the issues made in the pleadings, the defendant was guilty of negligence, and the existence or nonexistence of the claimed custom or practice was only material in so far as it bore on the question of whether it had or had not failed to exercise ordinary care.
In view of the failure of the defendant to comply with the workmen’s compensation law, the question of contributory negligence of the deceased may not be important, but the principle applies *250equally to the claimed negligence of the defendant company.
A majority of the court are of opinion that the application for a rehearing must be denied.
Rehearing denied.
Chittenden, J., concurs.