¶2On Motion eor Rehearing.
¶3In view of another trial, appellant has filed a petition asking the court to pass upon the sufficiency of the complaint and certain alleged errors based upon the rejection of testimony and the refusal to give requested instructions.
¶4The objection that the complaint does not state facts sufficient to constitute a cause of action, because it shows on its face that the accident to the plaintiff was caused by his contributory negligence, is disposed of by what is said in the opinion on the motion for a nonsuit, and need not further be elaborated.
¶54. Testimony that the pulley which caused the injury to the plaintiff was such as is commonly and ordinarily used in sawmills of the character operated by defendants was competent. Ah employer who uses machinery which is in common use in the line of business in which he is engaged is not liable for an accident caused thereby to an employe, which might have been prevented by the use of different machinery, in the absence of a statute providing the 'kind and character of machinery to be used or regulating the use thereof: Huntley v. Inman, 42 Or. 334 (70 Pac. 529: 59 L. R. A. 785); Hoffman v. American Foundry Co. 18 Wash. 287 (51 Pac. 385).
¶6The material parts of the instructions refused were, it seems to us, embodied in the charge as given.
¶7Reversed: Rehearing Denied.