If it was negligence on the part of Brooks to use an old spike and an old hammer, and the plaintiff’s injury was caused thereby, nevertheless the defendant is not liable. The uncontradicted testimony shows that the defendant furnished plenty of good spikes and good hammers. The negligence, therefore, if there was any, in the use of an old spike and an old hammer, was the negligence of Brooks and not of the defendant. But there is nothing to show that the spike was not a good spike or that it was negligent to use it. It cannot be said that the use of old spikes constituted of itself negligence on the part of the defendant. An old spike might be as good for certain kinds of work as a new one. And according to the plaintiff’s own testimony the orders were to use only the good ones. So as to the hammer, — notwithstanding the declarations of Brooks testified to by the plaintiff, there is nothing to show that the hammer was not a proper hammer for a person of the skill and experience of Brooks to use. The testimony tended to show that it was still a good hammer, although somewhat worn, and that Brooks continued to use it until he left nearly a year after.

Exceptions overruled.