ALLEN, P. J.

Action for damages. Trial by jury. 'Judgment of nonsuit entered, from which plaintiff appeals.

Plaintiff’s husband was employed by defendant to assist in digging a well. A whim was being used in hoisting material from the excavation. The derrick was about twenty feet in height, upon the top of which were placed two timbers nailed to the top of the derrick with ten-penny nails. Upon these timbers were fastened the bearings into which the ends of the shaft operated. The sheave-wheel and shaft .were at *383 tached together hy means of a set-screw, and it was intended that the wheel and shaft should revolve together, the wheel revolving between the two timbers, which timbers should act as a guard in keeping the wheel in place and thereby keeping the ends of the shaft within the bearings. A cable ran from the whim over this sheave-wheel and down to the bucket used in hoisting. This bucket weighed about fifty-eight pounds, and when filled, about five hundred pounds. The duties of plaintiff’s husband were to hook and unhook the bucket from the end of this cable, which duties required him to remain under the sheave-wheel at the mouth of the well. The set-screw proved ineffective and the wheel became loosened from the shaft. The movement of the wheel upon the shaft caused it to work out of its bearings until one end escaped therefrom and the weight of the bucket upon the cable pulled the wheel off the shaft, tearing loose the nails which held the supporting timbers in place, and the wheel fell, injuring plaintiff’s husband, from which, injury he soon thereafter died.

Evidence was presented by plaintiff to the jury tending to show that the construction of this hoisting apparatus was different from that usually employed in the vicinity in like work. A number of witnesses were examined, all of whom testified that they had never seen a hoisting apparatus where the sheave-wheel was attached to the shaft, but, on the contrary, the shaft, by means of a set-screw through the boxing embedded in the shaft half of its diameter, and the boxing being closed at the ends, was held firmly in place and could not shift in either direction, and the sheave-wheel revolved thereon. There was evidence showing that no guards of any kind were provided at the ends of this shaft to in any manner prevent its escape from the bearings in the event the set-screw should fail to hold. It is further in evidence that in this case the set-screw was only sunken into the shaft a sixteenth of an inch and “that there was nothing to keep it from getting loose”; and, further, that when the shaft escaped from the bearings, the weight upon the cable and wheel was sufficient to tear loose the ten-penny nails holding the timbers which supported the bearings, wheel and shaft.

It must be a conceded proposition that it was the duty of the defendant to provide reasonably safe appliances in the prosecution of this work, and that an omission in that re *384 gard would be negligence. Whether this hoisting apparatus was faulty in its construction and not reasonably safe for the purposes intended, and that defendant was negligent in reference thereto, were questions of fact. Under the established rule that negligence is a question of fact even where there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn from the evidence, we think it was the duty of the trial court to have submitted these questions to the jury for their determination. “It is said to be the highest effort of the law to obtain the judgment of twelve men of the average of the community, . . . as to whether negligence does or does not exist in a given case.” (Herbert v. Southern Pacific Co., 121 Cal. 227, [53 Pac. 651] ; Wahlgren v. Market St. Ry. Co., 132 Cal. 664, [64 Pac. 993].) We are of opinion that it cannot be said, as a matter of law, that it was not negligence for this defendant to. have furnished an appliance constructed in the manner heretofore stated. There is nothing in the record indicating contributory negligence upon the part of the deceased, nor of any of the fellow-employees, either in relation to the adjustment of the machinery furnished or otherwise, and, in our opinion, the court erred in granting the motion for a nonsuit.

Judgment reversed and cause remanded for a new trial.

Shaw, J., and Taggart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 10, 1908.