delivered the opinion of the court.
It is apparent from the evidence that the derrick was reasonably safe for the purpose for which it was used, when. used in the manner in which it had invariably been used before the accident; also, that no order or direction was given to use it in any other than the accustomed way. The order, “ Lower down,” did not, in the least, imply the lowering in other than the usual manner, namely, by means of a rope around the shaft, the handles being removed. Therefore, when plaintiff and his fellow-servants undertook to lower the stone in an essentially different manner from that before invariably used, well knowing that the accustomed manner had proved do be safe, and being ignorant of the probable consequences of the new experiment, they assumed the risk of the new method which, without direction from any one, they adopted. If there was any negligence, it was that of plaintiff and his fellow-servants in departing from the usual and safe method of using the derrick, or of his fellow-servants in permitting the handle or crank, which they were using to come off the end of the shaft, or these two combined. The legal presumption is, that a servant knows the condition of materials, machinery or appliances which he has a constant opportunity to inspect, and which his regular duties bring under his notice. Shearman & Redf. on Negligence, 4th Ed., Sec. 216.
In the present case the plaintiff’s evidence is that he and his fellow-servants had ample opportunity to know the exact condition of the derrick; and there is no evidence that any complaint or suggestion was ever made to defendant that it was at all defective. It is also the law that if a servant knows of precautions, by using which, danger may be avoided, he should use such precautions. Id., Sec. 214. The derrick having invariably been used for a long time in a certain wajr with safety, and without accident, it is a reasonable, if not unavoidable inference, that the master, the defendant, directed its use in that way, and that an essential departure from that way was disobedience of the master’s directions. We are of opinion that there can not be a recovery on the evidence, and that there was no error in directing a verdict for the defendant. The judgment will be affirmed.