delivered tbe opinion of tbe court.
In considering tbe action of the court below on the second trial, in giving tbe peremptory instruction for tbe appellee, we excl ude all reference to tbe controverted fact of a settlement by the railway company for tbe injuries complained of? and a release by the appellant. That question was not involved in the action of tbe court.
Tbe peremptory instruction rests upon tbe assumption that tbe appellant’s case, as made by all the evidence, including bis own, failed t.o make any issue of fact upon which a jury could be properly called to pass. Undoubtedly tbe learned court held that tbe injury complained of was tbe result of appellant’s contributory negligence in using tbe defective appliance, the unsafe foot-board, after notice of its condition on bis part.
*25Formerly this view would have correctly governed. But section 193 of the present constitution practically destroys this defense in cases where no wilful or reckless negligence can he predicated of the .conduct of the injured and complaining employe. ' “Knowledge by any employe injured of the defective or unsafe character or condition of any machinery, ways or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them.” The change is radical, sweeping, unambiguous, and we must enforce it as written.
The a appellant was a switchman. According to his evidence, he had seen that the foot-board was unsafe, but he believed, or had reason to believe, that, when he used it, the defect had been remedied. He was not wilful or reckless in his use of it, judged by his own evidence, and the-issue of fact should have been submitted to a jury. The judgment must therefore be reversed.
This brings next to our consideration the exception of the appellant to the court’s action in setting aside the first verdict rendered for appellant, and in awarding a second trial.
The instructions given for the appellant are singularly clear and brief, and they are unobjectionable, at any rate from appellee’s stand-point.
In view of what has already been said- by us touching the court’s action in granting the peremptory instruction for appellee, it is clear to us that no harm was done the railway company by the court in failing to give all the instructions asked. The case was fairly submitted to the jury, and the issues of fact found against the appellee, and that finding is not unsupported by evidence. It follows that the action of the court in setting aside the first judgment, was erroneous, and the same must be re-established here.
Reversed, and judgment in this court.