After being straightened up, it was later gone over by employees, and every bolt and nut in the entire steel structure was tightened up. It was, in fact, used in the usual and ordinary way after being repaired for a period of two years prior to this accident, and tubing had been pulled from the well in question ten times. There is no testimony that during that time any defect was found in the derrick, but the testimony stands without dispute that the workmen using it observed nothing wrong with it. There is no evidence indicating that the appliance was obviously dangerous, and proof that it was continually used for a period of two years without any indication that it was defective or inadequate refutes any imputation of negligence in continuing its use. Erickson v. Pacific States Lumber Co. (C.C.A.9) 18 F.2d 513; Carnegie Steel Co. v. Byers (C.C.A.6) 149 F. 667, 8 L.R.A.(N.S.) 677; Latting v. Owasso Mfg. Co. (C.C.A.8) 148 F. 369; Evansen v. Grande Ronde Lumber Co., 77 Or. 1, 149 P. 1035; Stringham v. Hilton, 111 N.Y. 188, 18 N.E. 870, 1 L.R.A. 483; Robinson v. Charles Wright Co., 94 Mich. 283, 53 N.W. 938; Cunningham v. Journal Co., 95 Mo.App. 47, 68 S.W. 592; Lyons v. Knowles, 3 Cal.Unrep. 846, 32 P. 883. As already observed, for two years this derrick had been supporting the strain and weight of pulling these tubings, without sign of weakness or inadequacy until the very moment of this accident.
We think that the trial judge ruled correctly in sustaining respondent's motion for a judgment of involuntary nonsuit. Merriam v. Hamilton, 64 Or. 476, 130 P. 406; Goldfoot v. Lofgren, supra; Sullivan v. Mountain States Power Co., supra; Abbott v. Portland Trust Savings Bank, 160 Or. 699, 86 P.2d 962; McKay v. St. Ind. Acc. Com., 161 Or. 191, 87 P.2d 202; Horn v. National Hospital Assn., supra; Seater v. Penn Mut. Life Ins. Co., Post P. 542, 156 P.2d 386; Erickson v. Pacific States Lbr. Co., 18 F.2d 513. Our conclusion obviates the necessity for consideration of the question of whether or not the evidence indicated that respondent was guilty of having failed to observe the requirements of the Employers' Liability Act.