Denied May 26, 1914.
On Petition eor Rehearing
(141 Pae. 1016.)
Mr. Justice Bakindelivered the opinion of the court.
Defendant urges that the opinion of this court did not decide whether plaintiff by remaining in defendant’s employ, knowing that defendant had no one employed to test the safety of the poles, assumed the duty to inspect them himself, and that he was guilty of contributory negligence as a matter of law. In other words, he thinks this court should say as a matter of law that plaintiff was guilty of contributory negligence, thereby entitling defendant to judgment of non-suit. In the opinion we held that that was a question for the jury, and was properly presented to them. Counsel assumes that plaintiff was the foreman of the plant and had authority to set new poles in the Oakland circuit. He was only 22 years old, but was al*412lowed to use Ms discretion in some tilings, though not generally. He had been told by Hicks, the superintendent, that they were going to discontinue the Oakland line and would not renew it; and he had no orders to examine the poles or renew them. The pole mentioned had two guy wires, and so far as he knew or could see it was all right, having no reason to doubt its sufficiency. The poles were renewed only where directed by the superintendent, and in town they were to be renewed only after a resurvey so they could put the poles in the alleys.
The case of Goddard v. Interstate Telephone Co., 56 Wash. 536 (106 Pac. 188), is not in point, as in that case the defect causing the injury was open and visible to plaintiff, and he had his hand on it, which was proof of contributory negligence. In this case the defect was invisible, and was made to appear only by plaintiff’s weight at the top of the pole and the cutting of the wire to disconnect it. The case of McGorty v. Southern etc. Telephone Co., 69 Conn. 635 (38 Atl. 359, 61 Am. St. Rep. 62) says that whether it is incumbent on the master or servant to test the poles before permitting the lineman to climb them is usually a question of fact for the jury: See, also, Cumberland Telephone Co. v. Loomis, 87 Tenn. 504 (11 S. W. 356). The employee assumes the ordinary hazard of the employment, and also the risks that are open and visible. An assumed risk is defined by Mr. Justice Moore in Johnston v. Oregon Short Line Ry. Co., 23 Or. 95 (31 Pac. 283), as an open, visible risk, which latter is defined as one so patent that a person familiar with the business will instantly recognize it, and about which there can be no difference of opinion: See, also, Roth v. Northern Pac. L. Co., 18 Or. 205 (22 Pac. 842); Mitten v. Pacific Bridge Co., 51 Or. 538 (95 Pac. 196). In Williams *413v. Sleepy Hollow Min. Co., 37 Colo. 62 (86 Pac. 337, 11 Ann. Cas. 111, 7 L. R. A. (N. S.) 1170), it is said the burden is on the defendant to show that the servant knew of the latent danger. These things made it proper to submit the case to the jury.
The petition is denied.
Affirmed. Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.