(dissenting).
There was testimony that defendant directed plaintiff to oil a certain windmill; that plaintiff ascended the ladder, oiled the windmill, and started to descend step by step; that he took hold of the rung in question with both hands, having the neck of a quart bottle containing oil in his right hand; that the upper third of the rung split off and he fell to the ground and suffered serious injuries; that he had repaired about eight windmills on the ranch having steel towers, but none with wooden towers ; that he had been on the windmill from which he fell on one or two previous occasions; that the tower and ladder had stood for a long time, estimated as twenty-five years; that about a year after the accident the piece of the rung which split off was found at the foot of the windmill and fitted in place and identified; that the rung disclosed three or four cracks on each side coming from the nail holes and apparently caused by the effect of weather on the wood or by the nail holes; that such cracks were from three to eight inches in length, but did not meet in the center; that red paint, with which the tower was painted, had seeped into one of the cracks and was discernible; and that a part of the portion of the rung still remaining on the ladder was ripped off with the hand without much trouble. The piece of the rung which split off and caused the accident, also the piece which was later ripped from the remaining part with the hand, were introduced in evidence and exhibited to us.
The ladder was not an ordinary and simple tool which the master was under no duty to inspect. It was a part of the premises, a permanent structure comparable in law to a stairway; and the same duty rested upon the master to keep it in a reasonably safe condition as though it were a stairway. The jury, as reasonable minded men, could have found from the evidence and its permissible, inferences that, due to cracks from nail holes or long exposure to weather or both, the ladder was in a weakened and defective condition; that such condition was the proximate cause of the accident; and that it was discoverable by reasonable inspection, but was not known to plaintiff nor was so patent that it could have been discovered on a casual ocular observation. If these conditions existed, defendant was negligent and plaintiff did not assume .the risk even though he was employed as a handy man and had been on the ladder once or twice before. Alaska Packers’ Ass’n v. Gover (C.C.A.) 278 F. 927; Twombly v. Consolidated Electric Light Co., 98 Me. 353, 57 A. 85, 64 L.R.A. 551; O’Brien v. Northwestern Consolidated Milling Co., 119 Minn. 4, 137 N.W. 399; Pendegrass v. St. Louis & S. F. R. Co., 179 Mo.App. 517, 162 S.W. 712.
The court should have overruled the motion for a directed verdict and submitted the issue to the jury.