ON APPLICATION FOR REHEARING
BY THE COURT:The Court has granted a rehearing on this appeal. Counsel have again argued it orally and by brief. The question presented is somewhat unique.
The action sounds in tort but the parties also stand in contractual relationship of independent contractor and cpntractee. It develops that by the terms of the contract the contractor agreed to provide good, safe equipment. Upon the facts appearing in the most favorable light to the plaintiff, at the conclusion of his testimony it could be said that the defendant had not provided good, safe equipment because, while the ladder was being used in the usual manner and in the ordinary course of the employment, it broke and fell. The evidence will bear the construction that the contractee used due care to.protect the equipment while it was in his possession and on the job and that when it broke it was in the *633same condition as when it was sent-on to the job by the defendant. It may, also, be properly inferred that the ladder broke because it was defective. Was this enough, undenied and uncontradicted, to make a prima facie case for the plaintiff?
Counsel have been diligent in briefing the question but notwithstanding, they have cited no case wherein the facts are parallel to those found here. Nor have we found any such upon independent investigation.
As we have said, the action proceeds in tort and four specifications of negligence are asserted. It has not been urged that this is a res ipsa loquitur case, nor could it be, because the equipment was not in the exclusive possession of the defendant. But it is asserted with much emphasis that the plaintiff has made proof which would carry his case to the jury and put the defendant upon explanation. It then becomes a question whether or not at the conclusion of plaintiff’s case the defendant was required to go forward because there was some evidence on every material element of plaintiff’s necessary proof.
Although under the contract the defendant was an independent contractor, by his agreement to provide equipment and that it would be good and safe, he thereby assumed the status of a master who is required to furnish safe machinery, equipment, and a safe place to work. In Copper Co. v Dickson, et al. (Ariz.), 195 Pac., 538, 44 A. L. R. 886, the writer of the opinion says:
“The rule deducible from the decisions is well stated in 14 R. C. L., 81, Par. 19; as follows:
‘Where the employer reserves the right to direct the manner of the performance of the contract in any particular, or where he undertakes to provide any of the instrumentalities, he owes to the contractor and the latter’s employees the duty of exercising reasonable care in respect to such matters.’ ”
In this case the ladder in question had been constructed by previous contractors and had by them been turned over to the defendant who, without any inspection, tendered it to the deceased and his partner as being safe and ready for use. After the decedent had fallen from the ladder, it appeared that the highest of five rungs was found pulled out of a wet and rotten upright, at one end, and the four immediately beneath broken in two. Here the Court held that the obligation *634of the defendant to furnish reasonably safe appliances in the performance of the work was a non-delegable personal duty and could not be heard to say that the defect was unknown to it, inasmuch as the defect was due to the mannr of constructing and repairing the ladder which defect reasonably appeared. The difference in the facts in the cited and the instant case are apparent.
If the relationship between the parties brought them under §12593 GC, as the trial court held, then clearly it was incumbent upon the plaintiff to establish that the defendant knowingly or negligently provided unsafe equipment. It cannot be claimed that he knowingly provided unsafe equipment; nor are we able to draw proper inference that there is any proof that he had constructive knowledge of the defective condition of the ladder.
The textbooks and the authorities are practically unanimous in holding that,
“Where recovery is' sought on the ground of failure of the •employer to. provide a safe place in which employees have to work or safe appliances with which they do their work, the burden is upon the plaintiff to establish that the place of work or instrumentality was unsafe or defective, * * *•, that this condition was the proximate cause of the employee’s injury; and that the employer had notice or knowledge thereof, or that, by the exercise of ordinary or reasonable care, he might have had such notice or knowledge.”
35 Am. Jur. 908; L. R. A. 1917 E. 196, 231, et seq.; 39 C. J. 972, 994, 995.
Without setting out at length the authorities which we have examined, we would refer counsel to 35 Am. Jur. 575, 591, 610, 612, 613; annotations to the L’Houx v Union Construction Co., 30 L. R. A. (N. S.) 800; Parker v Wood Lumber Co., 40 L. R. A. (N. S.) 833.
So that, whether or not §12593 GC, has special application to control the obligation of the defendant here the general rule is to the same effect as the statute. The extent of the employer’s obligation is set forth in the rule even though the appliance is something other than a common tool such as it is claimed here the ladders were. We concede that in view of their use the ladders may have been employed for a purpose which took them out of the category of a common tool and placed them in a class similar at least to scaffolding.
*635There was some proof that heavier ladders were made but it would have been pure conjecture to have permitted the jury to say that had the ladders, the weight of those employed, been sound they would not have stood up under the stress to which they were subjected.
It is also urged that the painting of the ladders by the contractor made it more difficult for him to discover a defect in the grain of the wood from which they were made. Without more elucidation than the mere fact that the ladders were covered with a primer coat, it could not be found either, that the paint covered the grain so that it could not be seen or, that the defect was such that it would have been seen if the ladders had not been painted. The difficulty with the plaintiff’s proof is that it may not be said that the defect was such that it should have been discovered by the defendant in the exercise of ordinary care.
There are two cases in the United States which we have found cited and we have been able to find one of them, namely, Branch v Pt. Royal and W. C. Ry. Co., 808, (Sup. Ct. S. C. 1892), which holds that:
“A complaint for injury to a servant while in the performance of his duty, through defect in the machinery provided by the master, need not state that such defect was known or ought to have been known by the master, want of knowledge being a matter of defense.”
This adjudication is not in accord with the marked trend of authority.
In Ohio we have a statute, §6243 GC, providing that if an employee covered by the act receives personal injury by reason of any defect or unsafe condition in certain named appliances in any way connected with the business of the employer, such employer shall be deemed to have had knowledge of such defect, before and at the time such injury was so sustained, and when the fact of such defect shall be made to appear upon trial of an action brought by such employee, against any such employer for damages, on account of such injuries so received, the same shall be prima facie evidence of neglect on the part of such employer; but the employer may show by way of defense that such defect was not discoverable in the exercise of ordinary care. It should be noted that it does not apply to simple tools but, as we have heretofore said, the manner in which' the ladders were being employed might take them out of the category of simple tools, but we cannot agree that the *636parties to this action were included in the Employer’s Liability Act under the contract controlling the employment.
The facts in this case lend considerable support to thé claim that the plaintiff should upon their presentation have the right to go to the jury, but we are unable to find that the law controlling will support such determination. We, therefore, adhere to our former decision of affirmance of the judgment of the trial court.
HORNBECK, J., and MONTGOMERY, J„ concur. GEIGER, J., dissents.