This action was brought to recover damages for injuries to a horse known as “Joe Terry” belonging to plaintiff, caused, it is alleged, by the horse stepping upon or against an insulator dropped by an employee of defendants upon a tract of land in Yolo County known as the “Van Zee Place,” occupied by plaintiff at the time of such injuries. The jury gave a verdict in favor of plaintiff for the sum of $6,475, for which amount judgment was entered. An appeal was taken by defendants from the judgment and from an order denying their motion for a new trial. Two decisions have been rendered on these appeals by the district court of appeal for the third district, the judgment and order being reversed by the first decision on account of error of the trial court in refusing an instruction as requested by defendants and giving the same in a modified form, and a rehearing having been granted by said court, the judgment and order were affirmed by the second decision. An application for a hearing in this court was then granted.

We are of the opinion that the first decision of the district court of appeal was correct. It is essential to a proper understanding of the question presented in the matter of said instruction that a statement be made as to some of the facts.

The defendants maintained and operated an electric transmission line, consisting of poles, cross-arms, wires and insulators, along certain highways in Yolo County, and the line passed the “Van Zee Place” just outside the city of Woodland. In the summer and early autumn of the year 1906 the line was reconstructed by defendants, new insulators put in on many poles, and every alternate pole removed, making the distance between poles 264 feet, instead of 132 feet, which was the distance prior to the reconstruction. At the time of this work the “Van Zee Place” was occupied by one L. E. Hutchings. A portion of this place consisted of an inclosed parcel of land fronting on the road, on which was a house, and another adjoining inclosed parcel on which was a barn. The land inclosed with the barn was known as the barnyard or corral. The land inclosed with the house was known as the houseyard and old vineyard. The vineyard portion fronted on the road and contained some ten or twelve rows of vines, varying, according to the testimony of Mr. Schwartz, the husband of plaintiff, from two inches to three feet in height. The inclosed portion containing the vineyard was not used by Mr. Hutchings for stock. Some time in November, 1906, plaintiff leased from Mr. Hutchings the two parcels of land we have referred to, and went into occupancy thereof. On April 10, 1907, plaintiff’s husband turned the horse into this old vineyard portion while his stall was being cleaned. A few minutes later, the stall having been cleaned, he went after the horse to take him back. He testified: “As I started to halter him he bit at me and I stepped back. I stepped back and corrected him for attempting to bite me. I held the halter for him to put his nose in, and the horse, in stepping back to put his nose in the halter, moved back and came in contact with something, which I found afterwards was a broken insulator.” The insulator was similar to those in use on defendants’ line at the time the reconstruction work was done, some of which were then removed. They had an eleven-inch porcelain top, shaped something like a saucer, and a glass center about nine inches long, and weighed about twelve pounds. Mr. Schwartz said that the saucer part of this insulator was whole and laid next to the ground. The result of the contact of the horse with this insulator, the glass part of which was broken, was, according to Mr. Schwartz, that the horse was severely cut on the right hind foot between the hoof and the fetlock. The horse was a stallion and valuable only for breeding purposes, and there was testimony sufficient to sustain a conclusion that he was thereby rendered useless for such purposes. There was testimony given by one William Weight, who was over eighty years of age and who was employed by Hutchings on the “Van Zee Place” at the time of such reconstruction work in the summer and autumn of 1906, to the effect that he saw one'of the men ehgaged in such work drop an insulator from the cross-arm of one of the poles into this vineyard, and that the insulator fell into the vineyard at the northwest corner, some seven or eight feet from the fence. This testimony was given some two years after the accident to the horse. He said that he saw the insulator in the vineyard many times thereafter, “passed it nearly every day,” but did not pick it up because it did no harm there, and that they were not using the vineyard for stock. It was clearly established that the horse was injured in the northwest corner of the vineyard, and Mr. Schwartz said that the insulator was at a point two or three feet from the north fence and between six and ten feet from the west fence, which was the road fence. Evidence introduced by the defendants was very clear to the effect that at the time this work was done by the. defendants, the nearest pole to the northwest corner of the vineyard on one side was sixty feet and on the other side seventy-two feet. Mr. Hutchings, then and for many years prior occupant of the place, testified in effect that there had been no change in the poles except that every other pole was taken out, and his testimony and that of Mr. Ashley, taken together, is clearly to the effect already stated. This evidence was in no way contradicted except in so far as it was inferentially contradicted by the evidence of Mr. Weight, to which we have already referred.

In the light of these facts, which we have stated as strongly in favor of plaintiff as the record warrants, the district court of appeal in its first opinion declared in part as follows:—

Learned counsel for plaintiff ably and earnestly assailed this opinion and the consequent judgment of reversal in their petition for a rehearing in the district court of appeal, and in their brief filed subsequently in this court, but we believe that it correctly disposes of this appeal. Some of the points so made by counsel are sufficiently disposed of by such opinion. We are of the opinion that the requested instruction was not an instruction as to” the facts, and that it correctly stated the law applicable in view of the testimony. We are satisfied that none of the instructions given the jury substantially covered the subject matter of the requested instruction, in so far as the same referred to the question of an intervening, independent agency. We do not consider Merrill v. Los Angeles etc. Co., 158 Cal. 499 , [ 139 Am. St. Rep. 134 , 111 Pac. 534 ], in any way opposed to our conclusion herein.

The judgment and order denying a new trial are reverse'd.

Mr. Justice Sloss deeming himself disqualified, does not participate herein.

Rehearing denied.