UPON PETITION FOR REHEARING.
October 13, 1928.
By the Court:In the petition for rehearing, it is again urged upon the court by the defendant in error that the verdict of the jury was, upon either of two grounds, properly disregarded by the trial court. It is insisted that the unbending test of negligence so plainly applied to the facts of the case that a recovery by the plaintiff was justly denied; and that the risk of injury from the falling of the bridge was so open and obvious to the plaintiff that he should be held to have assumed the risk from the peril which caused his injury.
The rule as to the unbending test is variously phrased, but it may be said to be that the test of negligence in methods and in the character of the machinery and tools and apparatus used or furnished by the master is the general custom or ordinary usage in vogue among others engaged in the same business, so that *839the standard of due care is the conduct as to these methods of the average prudent man in the business. The three most recent Virginia cases are Jeffress v. Virginia Railway and Power Company, 127 Va. 694, 104 S. E. 393; Southern Railway Company v. Chadwick, 144 Va. 443, 132 S. E. 191; and Atlantic Coast Line Railroad Company v. Bell, 149 Va. 720, 141 S. E. 838. From these cases and earlier cases on the subject it will be seen that the application of the rule to a given set of circumstances may be conclusive of the right of recovery, or it may not be. See also 45 Corpus Juris, 707-708. In the instant case there was uncontradicted evidence to the fact that the general plans and methods adopted, sketched or outlined by the engineers of the defendant for the repair of the bridge were those customary among bridge builders and bridge repairers. It may be that these general plans and directions were followed. However, in the instant case, there was a definite act done in carrying out the plans for repair, alleged to constitute negligence, notwithstanding the fact that the general method of repairing the bridge may have corresponded to the usual methods adopted by engineers and bridge repairers of skill. Still it can scarcely be said that it was usual, upon an exact adherence to the customary methods and plans, for the bridge, under such circumstances as those in the instant case, to be precipitated and fall. It is rather to be said that the bridge would not fall if the customary plans had been attentively carried out without neglect. This is not a case in which the application of the unbending test doctrine governs entirely, as is very frequently properly ruled under other circumstances. If an employer equips his factory in a manner similar to good factories of like character elsewhere and an accident occurs to a servant notwithstanding, it may be *840said that the master has done all that is required of him. In the ease here the question is, whether a negligent act was done by employees under the direction of a foreman which caused the bridge to fall. The instruction given by the court on the question of custom or usage was certainly as favorable, if not more so, to the position of the defendant as the defendant could expect.
The phase of assumption of risk presented in this case is that by which the employer is excused upon the ground that the servant assumed a risk which he knew of, or which was so plain and clear that he must have known of, and hence cannot recover for an inj ury resulting therefrom. In Davis v. Ellis, 146 Va. 366, 126 S. E. 658, 131 S. E. 815, the court says, quoting from Judge Cardwell in an earlier case: “The true rule of law deducible from the authorities is, that the servant assumes all the ordinary usual and normal risks of the business after the master has used reasonable care for his protection, also all such other risks as he knows of, or which were so unquestionably plain and clear that he must have known of their existence and their danger to him.”
In Looney v. Norfolk and Western Railway Company, 102 W. Va. 40, 135 S. E. 262, 137 S. E. 756, 48 A. L. R. 806, the court says, upon a reference to a Virginia case in Lynchburg Foundry Co. v. Dalton, 121 Va. 480, 93 S. E. 587: “It is only where the danger is so open and obvious, and the opportunity or knowledge on the part of the employee is so complete as to leave no doubt that he knew, or should have known, all about it, that the question becomes one of law for the court.”
In this aspect of the case the question is whether, judged by these standards, the plaintiff assumed the risk of the falling of the bridge from the withdrawing of the bolts from the truss arm. The *841plaintiff does state that he knew these bolts were withdrawn and in his opinion they were all that was holding the bridge, but he further states that he did not realize or know the danger from the likelihood that such acts might cause the bridge to fall. Taking the evidence as a whole, we find ourselves not in agreement with the holding of the learned trial judge that the evidence so plainly showed that the danger was open and obvious to the plaintiff that he should be held to have assumed it and, therefore, he could not recover. The plaintiff was an ordinary workman of some experience, but not of any skill in working upon bridges, and our opinion is that the evidence was not sufficiently clear under the rulings applicable to a defense of this character, the burden of which is upon the defendant, to authorize a holding by the court that the jury should not pass upon the question. It is to be observed that if the knowledge that the bridge was going to fall should be imputed to the plaintiff as an open and obvious result of what was being done by the foreman or his agent directing the bolts to be withdrawn, then the knowledge of the foreman would be greater and it would seem reasonable to suppose that the bolts were withdrawn incautiously and without looking out for the proper support of the bridge. Whether or not additional bents would have prevented the fall and should have been used, was for the jury. The propriety of using or not using bents or other additional supports could not be governed by any custom, for custom cannot be used to excuse an act of negligence.
We have given the case careful consideration and while it is not a case in which the right of recovery is perfectly clear, yet the issue of negligence was submitted to the jury, and properly so, and under the principles governing such cases prevailing in Virginia, *842neither the trial court nor this court should overrule the conclusion reached by the jury. We see no reason to alter the conclusion of the court that the jury was the proper tribunal to pass upon the issues in this case. The rehearing is, therefore, denied.
Rehearing denied.