ON REHEARING.
Christian, J., for himself:I wrote the opinion in this case and want to express my reasons for denying a rehearing.
This was a suit for damages caused by the falling of a fifty foot span of a truss highway bridge crossing the tracks of the defendant.
It was the duty of the defendant to so plan the repair or renewal of said bridge as to reasonably provide for the safety of the employees working thereon and not expose them to greater dangers than are ordinarily incident to such work.
The plaintiff alleged three grounds wherein defendant failed in its duty which by law it owed him and which constituted negligence.
The defendant’s defense was that it planned and renewed the bridge in the manner commonly adopted by railroads in such work and it proved that Norfolk and Western and Chesapeake and Ohio Railroads renewed such bridges without lightening the weight thereon or placing supports under same to prevent its falling. This is known as the “unbending test” of negligence.
Since the decision in the Jeffress Case, the “unbending test” rule is not a rule of substantive law in Vir-' ginia, but a rule of evidence, that is, that the methods pursued by others in similar work is evidence that the defendant exercised reasonable care in renewing the *843bridge, bat this is not conclusive, if there is evidence before the jury that the methods adopted and pursued were not reasonably safe. That is, that the usual methods of others and what was done in the particular case are facts for the jury to decide whether the defendant exercised such reasonable care as prudent men would have exercised under similar circumstances.
In the instant case the defendant did not furnish any evidence of what the plans for renewing this bridge were, except that its bridge expert told the foreman to lighten the load upon the bridge before beginning to renew the same. Nor does it appear whether the parts of the bridge were of such strength and soundness as would warrant the renewal thereof without lightening the load or placing bents under the same. This was a problem for an expert, and when the plaintiff proved that the load was not lightened upon the bridge nor bents placed under the same, the jury, with the model of the bridge before them and the fact that no measures were taken to prevent its falling, coupled with the fact that it fell, made such conflict of evidence before them that sustains their verdict and finding that the defendant had not used reasonable care.
The plaintiff not being an expert did not know and could not know what precautions were necessary to prevent the bridge from falling and did not therefore assume the risk.
The cases cited by counsel for defendant related to repairs of structures that any ordinary workmen might see and know the dangers incident to the work and, therefore, might be said to have assumed the risk of his employment. Where the “unbending test” of negligence is held to be substantive law, the workman is conclusively presumed to have assumed the risk of the employment and, therefore, cannot recover. *844Hence the “unbending test” rule defeats the recovery because of this assumption of risk, and he is not permitted to prove any negligence to the contrary.
Rule 22 has no application to this case, because the jury found in favor of the plaintiff, notwithstanding the erroneous instruction, and the court set aside the verdict because contrary to the law and the evidence, which was error on the part of the court as the jury found according to the law and evidence.
The petition for rehearing is denied.