*318Rehearing denied September 14, 1915.
On Petition for Rehearing,
(151 Pac. 472.)
Mr. Isham N. Smith, Mr. John F. Logan, Messrs. Carey & Kerr and Mr. Charles A. Hart, for the motion.
Mr. Lotus L. Langley and Manche I. Langley, contra.
Opinion by
Mr. Chief Justice Moore.2. It is asserted in a petition for a rehearing that in the former opinion herein many of the important questions presented by the appellant’s brief were not considered. The chief errors originally relied upon for reversal of the judgment were the denial of a motion for a judgment of nonsuit and the refusal to direct a verdict for the defendant, requests for which rulings by the trial court were based on the ground that Hartman’s injury resulted from his own negligence, thereby precluding a recovery of any damages. At the time he was hurt, as appears from the averments of the complaint and from the evidence, he was in the defendant’s service and engaged in putting up electrical lines and installing lights, which work was necessarily dangerous, requiring the defendant to exercise the highest degree of care to protect the lives and limbs of its employees, thus bringing the cause of action within the provisions of the employers’ liability law: Gen. Laws Or. 1911, c. 3; McClaugherty v. Rogue River Electric Co., 73 Or. 135 (110 Pac. 61).
3. Section 6 of that act reads:
“The contributory negligence of the person injured shall not be a defense but may be taken into account by the jury in fixing the amount of the damage. ’ ’
*319The method thus prescribed for determining the measure of compensation is not the rule of comparative negligence in Illinois, where slight carelessness on the part of an employee, when compared with gross negligence by the employer, will not prevent a recovery of damages for an injury sustained under such circumstances: 1 Thomp., Ñeg., § 269. The statute providing that the contributory negligence of an employee should not constitute a bar to his recovery of damages, but should be considered by the jury in determining the amount of his indemnity for an injury, is a recognition of the method prevailing in courts of admiralty of apportioning the damages between the parties in cases of marine torts, where the accident was partly due to the fault of the libelant: Id., § 268.
In actions based on a violation of the provisions of the enactment mentioned, though the question of contributory negligence of an employee has been considered on appeal, the rule is that, when there has been any carelessness on the part of the employer, with which the negligence of the employee co-operates, the issue of contributory negligence must be submitted to the jury for comparison: Filkins v. Portland Lumber Co., 71 Or. 249 (142 Pac. 578); Chadwick v. Oregon-Washington R. & N. Co., 74 Or. 19 (144 Pac. 1165); Sonniksen v. Hood River Gas & Electric Co., 76 Or. 25 (146 Pac. 980). When, however, it satisfactorily appears, from an examination of all the testimony and a consideration of the inferences based thereon and of the presumptions deducible therefrom, that an employer has not been guilty of any negligence whatever, and the injury which the employee sustained resulted wholly from his own carelessness, there is then no question of contributory negligence to be submitted to the jury.
Iu the case at bar the testimony shows that the de*320fendaut furnished to Hartman, an alleged incompetent employee, a defective button switch, which he installed where it controlled in part the current of electricity, by coming in contact with which he was injured. There was therefore negligence on the part of the defendant, to which the carelessness of Hartman conduced, and the issue of contributory negligence was properly submitted to the jury.
The petition for a rehearing should be denied; audit is so ordered. Affirmed. Rehearing Denied.
Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice Harris concur.