On Motion for Rehearing.
Counsel for appellant calls our attention to an error in the statement of the facts embraced in the original opinion, in which we quote Pope as testifying as follows: “I knew that, if I applied to Roderick, he would give me an order, and I could go to the blacksmith shop or the storeroom and get a new chisel.” Counsel is right. The testimony as actually incorporated in the record is as follows: “I knew that if I applied to Roderick, and he gave' me an order, I could go to the blacksmith shop or the storeroom and get a new chisel.” The difference, however, is slight, as will appear by a comparison.
It is also insisted that we were in error in saying that Roderick was uncontradicted in his statements that all of the men knew that they could get chisels at the blacksmith shop when they needed them, or from the storeroom by requisition from him. This was probably stating the case more strongly than it should have been. While there was no explicit contradiction of Roderick, yet the impression made by the testimony of the appellant himself was that he was not aware of that situation. The inconsistency, however, was such that we treated it as not amounting to a practical contradiction.
In disposing of the case, we based our affirmance of the judgment of the trial court solely upon the ground that no other verdict should have been rendered upon the facts, and did not discuss the special charge complained of in the only assignment of error urged upon appeal. The negligence relied on, as before stated, is the failure on the part of the railway company to furnish Pope, its servant, with a safe implement with which to perform his work. Assuming that the facts justify the conclusion that the implement with which Pope was working at the time he was injured was an unsafe one, the question then arises: Did the company furnish him with that instrument, or was it one of his own selection from a number of other and better ones to which he had access? In the Drake Case, before referred to and upon which the appellant relies, the facts show that the employs was injured by a defective hook with which he was attempting to move some steel rails. The hook was on the car on which the employs was ordered by the foreman to go and assist another in handling the rails. A rail hook had already been placed upon the car, and the employs used it in his work. The instrument is shown to have been worn, and on that account slipped while he was pulling upon it, thereby causing him to lose his balance and fall from the car and sustain the injuries complained of. The injured party testified that he did not notice the defective condition of the hook until after he had fallen. He also stated that he was ordered by the foreman when he went up on the car, and continually while doing the work, to “hurry up and get the rails out of the way,” and that he had no occasion to examine the hook, had to pick it up as he came, and thought it safe. He says he did not select the particular hook, but found it upon the car, where one was usually put for use when such work was being done. In discussing the case the court said: “It is true that oftentimes the character and condition of an implement are so plain that the master cannot be said to have been guilty of neglect of the duty because he has left it to the servant to see and know for himself all that was essential to his safety, but this assumes that there has been sufficient opportunity on the servant’s part to ascertain in the prudent use of the thing the *1068risks to be avoided. If the master actually puts into the bands of tbe servant an implement which the master ought to know to be in a dangerous condition, or such immediate and hurried use that the servant is likely to use it without opportunity to see the defect and the attendant dangers and to receive injury, the master’s liability for an injury thus caused would scarcely be denied. This case is not clearly of that character, and it is, it must be confessed, a very close one. But we are of the opinion that the circumstances as stated in the plaintiff’s evidence, the tendency and effect of which we shall not discuss at length, were such as to entitle him to have the jury determine the question of negligence vel non of the defendant upon a consideration of all the facts. * * * Whether or not the condition of a tool is so obvious that a servant necessarily assumes the risk of using it must depend in some cases not merely upon the simple character of the instrument itself and the openness of the defect in it, but also upon the situation and condition of the servant himself, his opportunity and capacity for discovering that condition, and the circumstances calculated to withdraw his attention from it; and the test in doubtful cases is the judgment of the jury upon the question of whether or not persons of ordinary prudence, similarly situated, would have discovered the risk.” The facts of that case are clearly distinguishable from those in this. Here Pope, who was an experienced employe, had ample opportunity to inspect the chisel, and, according to his. own testimony, he did examine it. The special charge submitted to the jury the issue as to whether there were other chisels reasonably safe for that work from which Pope might have made a selection. The testimony conclusively shows that safe chisels were kept both in the storeroom and at the blacksmith shop; and in the special charge referred to the court in effect tells the jury that if Pope knew, or in the exercise of ordinary care in the performance of his work must necessarily have known, that he could have procured safe chisels from either of those sources, then he was not entitled to recover. In other words, if Pope knew, or should be charg'ed with knowledge, of these facts, then it can-' not be said that he was restricted in his selection to the chisels contained in the tool box. We think the following authorities support the charge and the verdict rendered in this case: Lynn v. Glucose Sugar Refining Co., 128 Iowa, 501, 104 N. W. 577; Guedelhofer v. Ernsting, 23 Ind. App. 188, 55 N. E. 113; Campbell v. T. A. Gillespie Co., 69 N. J. Law, 279, 55 Atl. 276; Allen v. Iron Co., 160 Mass. 557, 36 N. E. 588; Maloney v. Rubber Co., 169 Mass. 347, 47 N. E. 1012; Rawley v. Colliau, 90 Mich. 31, 51 N. W. 350; Kehoe v. Allen, 92 Mich. 464, 52 N. W. 740, 31 Am. St. Rep. 608; Thomas v. Railroad Co., 114 Mich. 59, 72 N. W. 40; Cronin v. Russell Wheel & Foundry Co., 132 Mich. 500, 93 N. W. 1070; I. & G. N. R. R. Co. v. Hall, 46 Tex. Civ. App. 493, 102 S. W. 740.
The motion for rehearing is overruled.