Davis

(after stating the facts as above). [1] Error is assigned to the following instruction of the court to the jury:

It is urged that this instruction was erroneous for the reason that by the evidence it was shown that the plaintiff in error had placed at the disposal of Gordon, its foreman, strong and suitable cable out of which to make the strap, that he selected the worn and inferior cable which was used, and that for his act the plaintiff in error is not responsible; and the rule is invoked that, when the employer has exercised ordinary care to furnish material reasonably safe and suitable' to be used by his employes in the construction of appliances for use in work, the character or place of which necessarily changes as the work progresses, the duty of exercising reasonable care to construct such appliances is that of the employés, and not that of the employer. But that rule does not apply here for the reason that the appliance, according to the evidence, was a permanent one. It *489 was not a temporary device made to meet the exigencies of progressive work or changing conditions, but it was a permanent portion of the plant with which the work was being done, as much so as the…