Error to the court of common pleas.
John H. Davidson, the decedent, "was an employee of the Toledo Home Telephone Company as a lineman, and lost his life as a result of an injury received on December 16, 1913, by falling from a pole of that company located near West Woodruff street in the city of Toledo. It is admitted that the company had in its employment a large number of workmen and had not paid info the state insurance fund the prémium provided for by the *274workmen’s compensation law. At the close of the evidence offered on behalf of the plaintiff, the court, on motion, directed a verdict for the defendant company and on that verdict judgment has been rendered.
The petition alleges that in the performance of the duty of the decedent as a lineman he had climbed a pole of the company- and, in connection with a fellow-workman, was making certain repairs. It is further averred that the decedent, to steady himself upon the pole in the way that had been customary, placed his leg against or upon a guy wire and the guy wire suddenly broke and he was precipitated to the ground, a distance of about thirty feet. It is averred that it was and had been customary for linemen in performing that duty to use the guy wire as he was doing, and that that custom or usage was well known to the company, and that this guy wire was old, rusty and defective.
The plaintiff in undertaking to make out a case offered evidence for the purpose of proving the practice or custom of workmen engaged in the performance of the duties about which the decedent was employed, to use the guy wires for the purpose of supporting themselves while performing similar duties on poles of the defendant company. This evidence was rejected, and the plaintiff not being allowed to introduce evidence of the usage or custom of devoting the guy wires to this purpose, it resulted that the trial judge directed a verdict for the defendant. Much of the evidence which was offered on this branch of the case was incompetent and was rightly rejected, but a majority of the court are of opinion that some of it which was rejected was competent and should have been recived. The trial judge appears to have entertained the view that the existence of a custom or usage was not a matter of fact to which a witness should be permitted to testify. We hold, however, that a witness who is properly qualified should be allowed to testify as to the existence of a custom or usage of which it is shown he has knowledge, and that such testimony is not matter of opinion, but is as to the existence of a fact.
*275One Louis J. Higgins was called as a witness and it developed that he had been employed in line work for the Toledo Home Telephone Company from about February, 1912, to September, 1913, and was familiar with the methods in which such work was ordinarily performed by linement in the employment of that company. He was asked, this question: ‘ ‘ What, if any, use was customarily made of the guy wire upon the poles like the one from which Mr. Davidson fell, by the men at work on the pole to support themselves?” This question was objected to by counsel for the defendant, whereupon the plaintiff offered to prove by the answer of the witness that the men did the work customarily by leaning against the guy wire, or by putting their leg over it, as they might find it convenient, to help themselves in doing their work. The trial judge, iii sustaining the objection, stated that the objection was not only to the form of the question, but also as calling for a conclusion of the witness. We think the court erred to the prejudice of the plaintiff in sustaining the objection to this question and other questions of like character. The examination of the witness showed that he was testifying, or attempting to testify, to the manner in which linemen ordinarily supported themselves on poles in the performance of their duties at and before the date of the decedent’s fatal injury. If this evidence and other of like character had been admitted and had shown that the practice was uniform, extending over such a period prior to the injury as would authorize the jury to find that the company knew the guy wires on its poles were being used for that purpose, then a question of fact would have been raised as to the negligence of the defendant company. The evidence, if received, would have tended to show such practice, and we think it was prejudicial error to exclude the same. The primary purpoes of a guy wire is, of course, to be what its name indicates and thus furnish support and stability to the pole, we suppose it is competent to show by evidence, if it is a fact, that the guy wire is commonly used for an additional purpose, for instance, to furnish support and stability to workmen while on the pole; and if the evidence should show that the *276guy wires of this company were commonly devoted to that additional purpose, at and before the fatal injury to the decedent, and to the knowledge of the company, then the inquiry would properly be made whether the company was guilty of any want of ordinary care in maintaining the guy .wires, in view of such general use, and whether, in view of such evidence, the injury could reasonably be anticipated. We do not mean to intimate that the evidence was of such a character as would have justified the jury in finding the existence of such practice or custom, but only that the evidence tended to show the same and should have been received.
It is insisted in argument by counsel for the defendant in error that the result reached in the court of common pleas is required by the decision of the Supreme Court in Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 O. S., 27. Much similarity exists between the two cases. In that case, however, the doctrine of contributory negligence was applicable and to that extent the remarks of the Supreme Court are not pertinent to the case at bar. It will also be noticed that no attempt was made in that case to show by evidence that the appliances on the pole were devoted to any other than their primary purpose. In the course of the opinion Shauck, Judge, speaking for the court, uses the following language:
,“In the exercise of such foresight would it have been foreseen that these conditions, inaccessible to persons not engaged in the dangerous occupation of maintaining the lines, might naturally lead to injury to those so engaged? The obvious and known purpose of guy wires is to give stability to the poles to which they are attached. The obvious and known purpose of the stirrups or steps with which this pole was supplied was to furnish the means of ascent and descent to those who were charged with maintaining the wires. * * * In view of the considerations actually presented, can it be said that the injury to the decedent was a consequence to be anticipated in the exercise of ordinary foresight?”
The court in that case very properly concluded that the injury could not reasonably be anticipated and therefore held the com*277pany was not liable; and tbe same result would doubtless be reached in the ease at bar, unless by the evidence it can be made to appear that it was common practice at and prior to the date of the fatal injury to the decedent, to use the guy wires in the manner claimed, and that the existence of such practice was known to the defendant company or should have been known by it in the exercise of ordinary care. It thus becomes -apparent that the existence of a general practice to use the guy wires in that manner was one of vital importance.
For the error in excluding evidence offered by the plaintiff on that subject, and for directing a verdict for the defendant, the judgment will be reversed and the cause remanded for a new trial.
Chittenden, J., concurs.