*281Decided 3 April, 1906.
On Motion for Rehearing.
Mr. Chief Justice BeaNdelevered the opinion.
3. The defendant does not ask for a rehearing upon any question discussed in the opinion, but, in view of a new trial, he requests the court to pass upon the assignment of error, based on the giving of an instruction to the effect that if the plaintiff knew the rope broke, on account of its weak and defective condition, the day before he was injured, and knew that defendant, nevertheless, continued to use it, he assumed the risk of injury from the defective rope by continuing to work with the persons using such rope, and cannot complain, or recover damages if he was injured on account thereof. The objection to this instruction is that there was no testimony upon which to base it. The plaintiff testified that he knew the rope broke while a brace was being lowered the day before he was injured, but he did not know why the rope broke, or did not know whether it was the same rope as the one being used at the time of his injury. The bill of exceptions recites that all the testimony as to any knowledge on the part of the plaintiff as to why the rope broke and as to whether such rope was being used at the time of his injury is that of plaintiff and that “no evidence was given by any one that plaintiff knew ■why the rope broke before his injury, or saw it break, or that he knew that the rope used on the day of his injury was the same rope which had broken the day before.” It would seem, therefore, from the statement in the bill of exceptions that the instruction complained of was entirely outside the evidence, and, therefore, should not have been given, for it is error for a trial court to give instructions upon abstract propositions of law not applicable to the facts in evidence, however correct in themselves: Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Woodward v. Oregon *282Ry. & Nav. Co., 18 Or. 289 (22 Pac. 1076); Pearson v. Dryden, 28 Or. 350 (43 Pac. 160). The petition is denied.
Reversed : ReheariNG DeNIed.