On Petition for Rehearing.
Montgomery, J.9. Appellee’s counsel, on petition for rehearing, challenge all the holdings of the court adverse to the interests of their client. In the original opinion we said: “Appellant, by proper questions, sought to show that the floor dressing to which this accident is attributed was in use in other stores in the city of Indianapolis at and prior to the time appellee received her injury.” This fact appeared to us to be true beyond question; but appellee’s counsel, with apparent earnestness say: “We respectfully ask this court where in the record it found such proper questions ? ’ ’
Appellant introduced Thomas Kennedy as a witness, and showed that his business was selling floor oil to appellant and others. He was then asked how long he had been selling (he oil to appellant. Appellee’s counsel objected, and appellant stated that the witness, if permitted to answer, would testify that he had been making such sales for live or six years. The objection was sustained. It may be stated once for all that in each instance mentioned in this connection the question was in good form, the objection was general, and a *491propel' offer of specific responsive proof was timely made. The court refused to permit appellant to prove that the oil so bought was used on its floors, except at the precise time of the accident in question. Appellant’s counsel clearly stated his purpose and desire to show the length of time such oil had been used, as tending to prove that appellant had no knowledge that there was any danger from its use, but the evidence avus excluded.
*49216. 9. *491The witness testified that he had been selling this oil for six or seven years, that he had had experience in applying it to floors in many stores, and that, on an average, a gallon should cover about three hundred square feet of floor space. This question was then asked: “State to the jury how the oil in question should be applied to the floor;” and a like question relating to appellant’s floor in December, 1906. Objections were sustained to both questions. Witness Avas asked to state the condition in AA'hieh appellant’s floor should have been immediately after the oil had been applied to it, if properly applied. Appellee’s general objection to this question vras sustained. Witness Avas next asked AA'hat other dry-goods stores in the city of Indianapolis used the oil in question for dressing their floors in December, 1906, and then as to certain specific stores, and among others as to the New York Store, Avhether it used the oil on its floor at the time stated, whether it was not a five story and basement building and carried the same line of goods as appellant, and whether it was not one of the leading dry-goods stores of the city. Appellee’s objections were sustained to each inquiry. The following questions were then propounded: “You may state to the jury whether or not the oil for floors that you sold Avas one in common use here upon store floors by the merchants of this city;” and “You may state to the jury whether or not the oil which you say you sold for use upon the store floor of defendant was one in common use in well-regulated dry-goods stores of this city.” A further effort was made to prove that this floor dressmg was in use on the *492floors and stairways of school buildings in the city of Indianapolis, but in every case without success. This exhibition of the record relating to one witness will certainly show the attitude of appellee’s counsel in the trial court. They thwarted every effort to show the use of the oil, except at the time of the accident, not on account of the form of the questions, but because, as claimed, all such evidence was wholly incompetent. Appellee’s counsel now seek to sustain their position, on the ground that no offer was made to show that the persons using such oil were reasonably prudent men. This is manifestly an afterthought, which, if tenable, could not be now availing, since the only objection made at the time was the stereotyped phrase that the offered testimony was “incompetent, irrelevant, and immaterial, and does not tend to prove any issue in this cause.” Appellant sought to show the extent and character of the use of this oil, and that it was in common use in dry-goods stores in the city of Indianapolis. This was sufficient, and appellee’s counsel must be held to the position voluntarily assumed by them, and cannot be allowed to take advantage of an objection not made to the trial court, unless the evidence was manifestly incompetent on any theory. We trust we have made clear the fact that the questions upon which the case was decided were properly presented. Our holding in the former opinion, that the custom of using the same and similar floor dressings in other stores and public buildings in the city of Indianapolis was competent, is not challenged in appellee’s petition. It is, however, insisted that we erred in holding that appellant had a right to introduce evidence showing the length of time it had been using this floor dressing on its store floors, the extent of the use of such floors by the public under conditions substantially similar to those existing at the time appellee sustained her injuries, and that no prior accidents had occurred from such use. This holding follows as a corollary of the other. But counsel insist that it is in conflict with *493the following cases decided by this court. Nave v. Flack (1883), 90 Ind. 205, 46 Am. Rep. 205; Bauer v. City of Indianapolis (1884), 99 Ind. 56; Cleveland, etc., R. Co. v. Wynant (1887), 114 Ind. 525, 5 Am. St. 644.
We were not unmindful of these cases, and others upon which they were based, in reaching our conclusion in this case. That line of cases relates chiefly to the use of public highways, and the principle declared in substance is, that if a place is in reality dangerous, and the party charged is in fact guilty of negligence, then he will be liable, although the dangerous place may have been much used. This principle is.sound and undeniably correct. This case is not of that class and does not come within the principle declared. In this case appellee, both in the complaint and on the trial, proceeded upon the assumption that the use of the floor oil made a prima facie case of negligence. Her counsel excluded evidence offered to show how the oil should be applied to the floor, and introduced no evidence .tending to prove that the oil was spread over the floor in an improper manner.
17. It was made to appear by appellant that the oil in question was a preparation made and sold for the particular purpose .for which it was being used at the time of this accident. If an article or instrumentality has been designed for a particular use and adopted and actually put into common or general use in the way intended, such use cannot serve as the sole basis of a charge of negligence. In the case of Prosser v. Montana Cent. R. Co. (1895), 17 Mont. 372, 43 Pac. 81, 30 L. R. A. 814, the court said: “But when it does not appear that the act is positively negligent, we are of opinion that it is competent to show the usage or custom of competent and prudent persons in performing the act.”
*4949. *493In the case of Hillyard v. Grand Trunk R. Co. (1885), 8 Ont. 583, the court held that evidence of the common use of fences of the kind used in other townships, and that other *494municipalities held out inducements to erect them, should not have been rejected, as showing that they were not considered dangerous or a nuisance. In the case of Hoppe v. Parmalee (1900), 20 Ohio C. C. 303, involving the operation of a machine, the court declared “that to show that defendants had knowledge that accidents were likely to occur at this machine, it would have been competent for the plaintiff to show that other accidents had occurred upon like circumstances — and we know of no good reason why the converse should not be allowed, that is to say; to show by a witness familiar with the machine, that, during its operation for many years, no accident had occurred.” See, also, Cleveland, etc., R. Co. v. Newell (1885), 104 Ind. 264; City of Fort Wayne v. Coombs (1886), 107 Ind. 75, 57 Am. Rep. 82. It seems clear to us, upon principle, that appellant had a. right not only to show that the floor preparation in question was an article in common use, but also, in order to rebut any charge or imputation that such usage was hazardous to the public safety and negligent, it was competent to show that no accidents had resulted from such use under circumstances substantially like those existing at the time of appellee’s fall.
13. The competency of Zink as a witness is again challenged and argued. We can add little to what is found in the former opinion upon this question. It is suggested that his evidence, if heard, would have been only cumulative. The rule as to cumulative evidence has no application when competent testimony has been excluded. Appellee’s physical condition prior to this accident was a very material and important matter in this case. Zink had a better opportunity to know her actual condition at the time she was under his care than perhaps any other witness in the case, and his evidence should have been heard.
*49518. *494We are finally asked to save the case, under §700 Burns 1908, §658 R. S. 1881, on its general merits. The errors *495pointed out are substantial, not technical; and at all events, as the case now stands, we are not at all convinced that a right result has been reached, either on the question of liability, or to the extent of the injuries sustained.
The petition is overruled.