The complaint alleges that at the time the plaintiff sustained the injuries complained of, the defendant’s laborers (he being one of them) were engaged in “ raising cross-ties, etc., and leveling the road-bed,” etc. Now, in view of the nature of such employment, and the pole used as a lever in the connection as described in the complaint, and accepting all the evidence in respect to its use as true, we think the Court ought to have told the jury that the pole was an appropriate implement, and not dangerous for the purposes to which it was applied. All the evidence pertinent went to show that the laborers were engaged in raising the track of the road, and that they used the pole to prize it up, placing the end of it under a cross-tie. In its nature the application and use of the pole was simple and appropriate, and the evidence went to prove the same fact. That “jacks” or other instrumentalities might have been employed effectively to raise the track, did not make it negligent to employ the lever — another appropriate means. The Court ought not, therefore, to have modified as it did, the instruction the defendant requested it to give the jury.
The third issue submitted to the jury had reference to whether or not the plaintiff had knowledge of the nature and use of the pole as a lever. As to this, the Court “told the jury that he knew of no witness who gave direct testimony *622tending to show that the plaintiff knew or had good reason to know of the nature and character of the implement used by him and consent to use the same, and called upon defendant’s counsel to point out such evidence.” We think there was such., evidence, and that what the Court said in that respect may have misled the jury to the prejudice of “the defendant. They saw that the Court was of opinion that there was not such evidence, and after the colloquy with counsel, they saw that the Court was still not well satisfied as to its character. This, no doubt, impressed the jury. There was certainly evidence that the plaintiff was present, the pole was there plainly to be seen, as was also its purpose and application; he was directed to join in its use and he did so. Surely these facts constituted some evidence, tending to prove that he knew of the character of the pole he aided in using, and that he consented to help in the use of the same. The pole and its use were simple, easy to be seen and understood at a glance. It may be, however, that the plaintiff did not observe them with scrutiny, though there was evidence that he and the other laborers were cautioned to be careful. But be this as it may, there was evidence appropriate and pertinent to go to the jury without such possible prejudice as to its character and sufficiency.
There is error, and without adverting to other exceptions, we are of opinion that the defendant is entitled to a new trial, and so adjudge.
Error.