(dissenting-).
I am satisfied that the charge referred to was erroneous. It conveyed to the jury the idea that it was the duty of defendant to furnish the safer and better machinery if such were in general use. Even if construed as in the opinion, I have grave doubt as to its being a correct statement of the law. The charge contains the element of ordinary care on part of the master in furnishing the machinery, and also the proposition that the machinery must be reasonably safe. In determining the truth of either one of these propositions, the jury might take into account the fact that better and safer machinery was in general use, but it is simply an additional element to be considered. To be consistent with the charge as explained' in the opinion, the jury would have to determine whether the machinery was reasonably safe, and, if they found it to be unsafe, then find whether there were in use better and safer machinery; and, if they found that to be the case, then the conclusion follows that the master did not use ordinary care. I do not think such a conclusion necessarily follows. But, if the explanation as given by the court be a correct statement of the law, the charge, as given, was uncertain and indefinite to such a degree that the jury must have been misled by it. While it is the duty of *9counsel to call tbe attention of the court to the use of language which might be misunderstood by the jury, this requirement has its limitations; and where the charge is so misleading as will, in all probability, convey to the jury the wrong theory of the law, it amounts to error. In my opinion, the rule stated hag no reasonable application in this instance, and a new trial, for that reason, should be granted.
I am authorized to say that Justice COLLINS concurs in the views herein expressed.