delivered the opinion of the court.
We are of the opinion that the court below committed no error in refusing to take the case from the jury; that the evidence presented a fairly debatable question as to the immediate cause of the accident, and it being within the province of the juiy to decide that question of fact, we are not at liberty to disturb its finding, and, upon this review, must accept its conclusion that such cause was the breaking of the rope that suspended the end of the platform upon which the plaintiff was standing at the time of the accident. Whether the rope broke by reason of a defect that existed at the time plaintiff commenced work, or whether it was subsequently weakened and rendered insufficient by his own act in negligently spattering acid thereon while at work, was the fact decisive of plaintiff’s right to recover, and upon that question the appellant prayed the following instruction.
“7th. If jmu find from the evidence that the plaintiff had been instructed that the acid used for cleaning would eat the ropes, and the ropes were of sufficient strength when the plaintiff began work, and that the rope broke because of acid which the plaintiff got upon the same, then he cannot recover.”
This instruction was pertinent to the vital issue of fact in the case and was specially applicable to the evidence introduced upon that issue. It was undisputed that plaintiff, at the time of his employment, was expressly told that the business was dangerous, owing to the fact that the muriatic acid used- in cleaning the walls would, if brought in contact with the ropes, eat and rot them. It was further testified by defendant and the witness Hall, that the ropes were sound
Counsel for appellee seek to excuse the refusal to give the instructions upon the ground that the evidence was unsatisfactory and insufficient to establish the fact that acid in sufficient quantity to injure it got upon the rope. The sufficiency of the evidence was for the jury to determine.
Nor can we agree with counsel that the issue to which this request was directed was properly submitted to the jury by the court in its general charge. We are unable to find in the general charge an announcement of the principle expressed in the instruction prayed for, or any intimation that can be construed as its equivalent.
A further, and what we regard as a fatal error occurring on the trial of the case, was the refusal of the court to give the following instruction prayed by appellant :
“ 11th. The fact that after the accident defendant used a new rope in continuing the work, cannot be used by the jury in determining whether defendant is liable to plaintiff.”
Plaintiff was permitted, against objection, to introduce in evidence declarations of the witness Hall, made subsequent to the accident, to the effect that after the accident the ropes in use at the time it occurred were abandoned and new ropes substituted. Hall was the principal witness introduced on the part of defendant, and in his examination in chief testified that he knew the condition of the ropes when plaintiff began work, and that they were sound ropes. On cross-examination he was asked the following questions:
“ Q. Did you not state to Mrs. Dietz at her house on Curtis street about November 1st, in the presence of Kate Ev*278 ans, Mr. Jennings and the plaintiff, that it was an old rope ? A. No, sir; I did not, to them or anybody else.”
To this question and answer counsel for defendant interposed an objection which was overruled.
“ Q. Did you not on that occasion state that they had abandoned the use of that rope, and no longer used it immediately after the accident?”
In overruling the objection to this question, the court said: “It is for the jury to determine what this evidence tends to prove.”
“ I never said nothing to them. Q. Did you not at the same time and place say in substance that Anson had locked the stable door after the horse was gone ? A. No, sir.”
In rebuttal the plaintiff introduced testimoiry as follows :
W. S. Jennings, witness for plaintiff.
“ I heard the question to last witness as to the conversation at Mrs. Dietz’s house. Q. Did not Hall state in that conversation that it was an old rope ? ” (Objected to as incompetent, immaterial, etc.) Objection overruled. “A. Yes, sir; Mr. Hall made' the remark that the rope was old. Q. What, if anything, did Hall say in that same conversation with reference to locking the stable door after the horse was gone?” Over objection, witness answered: “A. He made the statement, after horse was stolen it was customary to lock the barn, or to that effect.”
Kate Evans, sworn for plaintiff.
“I am plaintiff’s sister. I remember Hall coming to George’s bedroom at Mrs. Dietz’. Q. State whether or not at that time Hall said this rope was old ? ” Over objection, witness answered: “A. He said it was old, and we have put a new rope on; that after the horse was stolen the barn door was locked.”
George Evans, the plaintiff, testified to the same effect. The only purpose for which this evidence could be admitted (if at all) would be to impeach the witness Hall, and for this purpose it may be that his statement outside of court that the ropes were old and that new ones were substituted
It having been brought to the knowledge of the jury that defendant substituted new ropes after the accident, the appellant was entitled to have that fact withdrawn from their consideration, and the court erred in refusing to give this instruction.
We think there is much force in appellant’s criticism of the instruction given as to the measure of damages, in so far
It is not necessary for us to determine whether the instruction in this respect would constitute reversible error, as the case must be reversed upon the other grounds noticed, but we deem it of sufficient importance to call attention to this assignment of error in ease another trial should be had.
For the reasons given the judgment is reversed, and the cause remanded for a new trial.
Reversed.