— Appellant received bodily injuries while engaged with others in the employ of defendant, under the directions of a superintendent, in raising a derailed and wrecked car. He alleged that the injury occurred through the use of inadequate, inappropriate, insecure, and defective appliances furnished by defendant without proper care and caution in the selection thereof, and through the negligence and unskillfulness of the superintendent who was engaged in directing the work on behalf of defendant.

The defendant asked the court to give the following instruction, which was refused: —

The defendant moved for a new trial, and the motion was granted on the ground that the court had erred in refusing to give the instruction above quoted.

We think the instruction ought to have been given.

When the employer exercises all the care and caution which a prudent man would ordinarily take for the safety and protection of his own person under the same circumstances, he cannot be held liable for the consequences of a defect in the machinery or appliances used. This is the sense in which the expression “reasonable and ordinary care, skill, and diligence in procuring and furnishing suitable and safe machinery and appliances” was used in the instruction asked, as we understand it; and is equivalent to the rule as stated in many of the authorities; viz., that the employer is liable only when he had knowledge of the defect, or failed to exercise reasonable diligence in procuring suitable machinery, or in the inspection of it to discover any defect that might exist. (Bajus v. Syracuse etc. R. R. Co., 103 N. Y. 312 ; 57 Am. Rep. 723 ; Lake Shore etc. R. R. Co. v. McCormick, 74 N. Y. 440 ; Devliny. Smith, 89 N. Y. 470 ; 42 Am. Rep. 311 ; *499 Payne v. Reese, 100 Pa. St. 301; Hobbs v. Stauer, 62 Wis. 108 ; E. St. L. P. & P. Co. v. Hightower, 92 Ill. 139 ; Atchison etc. R. R. Co. v. Ledbetter, 34 Kan. 326 ; Cagney v. Hannibal etc. R. R. Co., 69 Mo. 416 ; Smoot v. Mobile etc. R. R. Co., 67 Ala. 13 ; Little Rock etc. R. R. Co. v. Duffey, 35 Arle. 602.) And our code establishes the same rule: “An employer must in all cases indemnify his employee for losses caused by the former’s want of ordinary care.” (Civ. Code, sec. 1971.)

The use of the word “accident, ” in the instruction, is not obnoxious to the criticism put upon it by appellant. The court meant to say, simply, that the mere fact that the chain broke would not authorize the inference that the defendant had failed to exercise reasonable care in the selection of the appliances used. Such is the fair import of the word as used, and the jury must have so understood it.

It is claimed that no prejudice could have resulted from the refusal of the court to give the instruction, inasmuch as there was no evidence on the question as to whether the appliances used were defective. We cannot say, however, that there was no evidence on the subject, and there is nothing in the record to show whether the jury believed the injury was due to defects in the machinery used, or to the negligence of the superintendent. The plaintiff tendered both issues, neither was withdrawn, and it was proper to instruct the jury as to the law applicable to each of them.

The views expressed render it unnecessary for us to consider the effect of the statement, found in the order of the court granting a new trial, that “ no other grounds assigned by defendant for the granting of a new trial are well taken.”

The order is affirmed.

Harrison, J., and Garoutte, J., concurred.

Hearing in Bank denied.