Respondent concedes the judgment in this ease must be reversed on account of an erroneous charge to the jury concerning the measure of damages, but claims he made a prima facie case; whereas, the appellant contends a peremptory instruction should have been given in its favor. The basis of this position is that the testimony of the respondent and his witnesses shows the injury for which he sued was wholly or partly caused by his own carelessness and dis? obedience of orders.

Respondent was working for the appellant as a quarry hand and got hurt from the falling of a stone which was being hoisted from the floor to the edge of the quarry. Some cord-wood was on the floor, which the foreman directed the respondent and a fellow-workman by the name of Acuff, to move out of the way so that the grappling-hooks of the derrick could be fastened to the stone to hoist it. The two workmen.removed enough of the wood to enable them to fasten the hooks or “dogs,” as they were called, to the stone and gave the foreman a signal to hoist. He signaled the engineer and the latter immediately started the steam hoister or derrick. As soon as the slack of the chain was taken up, it was seen that the hold of the hooks was insecure, and on a signal from Acuff *16or Sikes, the machine was stopped and they were fastened to the rock again and a signal to hoist again given to Quinley, who signaled to the engineer. The rock was lifted a short distance when one of the hooks slipped off, the stone fell, struck a pole about ten feet long and four inches thick, which was leaning against the wall of the pit, and knocked said pole against Sikes as he fell in running to escape the rock. The effect of the blow from the pole was to break both his arms.

There was much evidence that it was customary in hoisting stone in this and similar quarries, to stop the hoister after the slack was out of the chain and then proceed to lift the stone on a signal from the men below, who were thus afforded-an opportunity to get out of harm’s way. There was evidence also tending to prove that foreman Quinley failed to follow that course or to give the respondent time to reach a place of safety. Undoubtedly this made a case to be submitted to the jury, as appellant concedes, unless the respondent was guilty of contributory negligence in leaving the pole, which struck him, where it was. Appellant’s contention is, that Sikes and Acuff were ordered to remove this pole as well as the other wood, in fact all the wood in the quarry, or at least all in the corner where the stone lay which was to be hoisted; that they disobeyed this order by not moving the pole and, therefore, Sikes’ injury was due to his own carelessness or that of his fellow-servant Acuff. Ear from the undisputed testimony showing that Quinley’s order was to move all the wood, the preponderance of it seems to be that his direction was to move such of the wood as obstructed fastening the hooks to the stone. This was done. It was unnecessary, so far as we can see, to displace this pole in order to fasten the hooks securely, nor did the failure to move the pole have anything to do with the stone falling. Appellant’s argument that the court should have nonsuited plaintiff for contributory negligence in this regard hardly deserves serious attention. The entire case as to the defendant’s negligence, plaintiff’s *17contributory negligence and whether or not his hurt was due to the negligence of a fellow-servant instead of that of the foreman, was for the jury.

The judgment is, therefore, reversed on account of the error confessed and the cause remanded for a new trial.