Cavoretto

(after stating the facts as above).

In charging the jury the court said: “If you find that the hammer was a defective appliance, then the next question would be: Was the defendant required to use that particular hammer while in that particular condition in the performance of the work, or was he free to repair or reshape it, or get some other hammer that was suitable, and not dangerous? For, if he was so free, then defendant cannot be said to have required the work to be done with that hammer in that shape. If you find from the evidence *626 that this particular hammer was furnished plaintiff to do the work with, and that it was defective, then you are to inquire further whether the defect in the hammer was due to the negligence of the defendant — that is to say, whether or not it knew, or by the exercise of reasonable care could have known, that the hammer was defective. If it was defective, and the defendant knew, or ought to have known, of that fact, and required the plaintiff to use it in the performance of his duties — that is, left him no free and voluntary choice but to use it in that shape — and if the injury, if any, was received by virtue of so using the implement so…