
    Lewis H. McDade vs. Washington & Georgetown Railroad Company.
    Law.
    No. 25,033.
    Decided June 28, 1886.
    Justices Haoner, Jambs and Merrick sitting.
    1. Circumstances under which an employee engaged in the working of defective or dangerous machinery cannot recover damages from the employer for injuries received, stated by the court below in its instructions to the jury and affirmed on appeal.
    2. An employee charged with the duty of working machinery with another employee is not a co-employee in such a sense as to relieve the employer from responsibility for an injury to one of them which happens through the defect of machinery, although that defect may have been brought about by the negligence of the other employee.
    8. The court cannot take a case from the jury where there is any evidence involving issues of fact. Thus in an action by an employee for injuries received by reason of defective and dangerous machinery which he has been employed to work, the questions of the sufficiency of the machinery, his ignorance of its dangerous character, and the failure of the employer to inform him of the fact, are all matters peculiarly within the province of the jury. It is not error to refuse a prayer for an instruction, proper in itself to be given the jury, if the substance of the prayer has been granted in other instructions.
    4. The vice of unnecessarily multiplying prayers and exceptions commented upon and condemned.
    5. It is the duty of the employer to apprise the employee of any defects in machinery which are beyond the reach of the observation of the latter.
    6. The fact that the plaintiff worked habitually with the machinery in question, for a period of ten or fifteen months, is competent evidence from which the jury may infer that plaintiff was fully acquainted with its dangerous character, but it is not conclusive evidence; the jury are to determine its weight in fixing the extent of plaintiff’s knowledge and how far it is qualified by the other circumstances of the case.
    7. So whether or not certain facts of the case constitute a sufficient warning of danger must be left to the jury.
    8. Where an employee, sufficiently apprised of the danger, rashly undertakes an act in connection with the manipulation of machinery at which he is employed, his employer is relieved from responsibility for any injury which results.
    Motion by defendant for new trial, on a bill of exceptions and case, in an action for damages for personal injuries to an employee, caused by negligence.
    
      STATEMENT OE THE CASE.
    This was an action on the case to recover damages for the loss of plaintiff’s arm, by reason of the alleged negligence of the defendant in not providing proper machinery. The defendant owned and operated a machine and car shop for manufacturing and repairing the cars used by it. The work was carried on in a two-story building divided into a number of compartments, one of which was used as a blacksmith shop.
    The machinery used in the building was propelled by an engine located in a room adjoining the blacksmith shop, there being a partition wall between the two rooms, through which was a door. The main shaft, from which motion and power by means of belts were communicated to the various machines in the building, was located in the engine room. Plaintiff was employed by the defendant as a blacksmith, and worked in the blacksmith shop, the forges of which were connected with a revolving fan near the ground, which created the blasts of air necessary to keep up the forge fires. This fan was propelled by means of a belt connected by pulleys with the main shaft in the engine room. When the fire was not needed for the forges, and the machinery in other portions of the building was to be used, this belt was thrown off, to be afterwards put on when needed.
    For nearly eighteen months the plaintiff had been in the habit of putting on and putting off this belt, on an average of once a week. When the belt was to be put on he mounted a ladder'about twelve feet long which rested near the belt and pulley, and adjusted the belt while the pulley was revolving, the motion of the pulley helping the effort to put the belt on, it being exceedingly difficult to do so while the pulley was at a “stand still.”
    On the morning of the accident, plaintiff found the belt off and the machinery in motion; he ascended the ladder and tried to put it on, but it jumped off the pulley. He then descended and going into the engine room told the engineer, Kline, that there was something wrong with the belt.
    Kline then attempted to put the belt on, but failed also, the belt jumping off in the same way. He then desisted attempting to put it on and said to plaintiff: “ Hold up until I shut down,” at the same time running into the engine room to the engine, a distance of about twenty-five feet, to shut off the steam. Plaintiff, after waiting from half a minute to a minute for the machinery to be “slowed up,” and after it had slacked somewhat, again attempted to put the belt on ; he had scarcely done so when the belt was again thrown off, this time toward and against the plaintiff, catching upon a projecting screw which fastened the pulley to the shaft; the belt wound around the shaft, binding plaintiff’s arm down to it, and so breaking and crushing it as to render immediate amputation necessary.
    An examination into the cause of the belt slipping off showed that it had been repaired the previous Friday or Saturday, and had been rendered a little too tight for the pulley. The plaintiff thereupon brought this action to recover damages for the injury, alleging in his declaration his cause of action as follows:
    “ Plaintiff sues, etc., for that the defendant is a corporation and owns and operates a horse railway in the city of Washington and District of Columbia, and certain machinery for the construction and repairs of the tracks, cars and other appliances and implements used in connection therewith ; and heretofore, to wit, on the 5th day of February, 1883, the plaintiff was in the employ of the defendant as a blacksmith, and was required by the defendant from time to time to put and place a certain belt upon a pulley attached to a counter-shaft when the same was in motion, to communicate power and motion from the machinery in the machine shop of the said defendant, to the fan and drill press used by plaintiff in defendant’s blacksmith shop; and that the said machinery and appliances were defective and dangerous, in that there was no loose pulley and lever or shifter to use for the purpose of putting said belt on and removing it from said first named pulley; that plaintiff had no notice or knowledge, being unused to and unskilled in the said machinery and appliances and the use thereof, that the same were defective and dangerous to use, but the said defendant, its servants and agents did know the same, but failed to notify plaintiff thereof; and on the said 5th day of February, 1883, the said plaintiff while ignorant of said defect and danger as aforesaid, was, at the defendant’s request, engaged in the act of putting said belt on said first-named pulley, and by reason of said defect and the dangerous condition of said machinery and appliances, and without any fault or negligence on his part, he was caught in or struck by said belt with great force, and his left arm severed from his body thereby, by means of which he was, etc.”
    Three other counts laid the action in different ways, but substantially as above.
    On the trial, after offering testimony tending to establish the foregoing facts the testimony of skilled machinists was offered, going to show that it was dangerous for any person, and especially one not experienced, to put belts upon moving pulleys by hand, and that doing so should be avoided as much as possible ; that there has been in common and general use for twenty-five or thirty years a contrivance known as a loose pulley running on the counter-shaft by the side of the fixed pulley, and when it is desired to stop any particular machine while the main shaft is in motion, it is done by shifting the belt from the fast to the loose pulley by means of a shifter or lever fixed on a pivot to the ceiling above, which is easily worked by hand in shifting the belt from one pulley to the other, without touching the belt with the hand, and in this way any machine may be started or stopped at pleasure, and without any danger whatever to the person operating the lever; that such a contrivance is very simple and cheap, andthatthe defendantuseditin other parts of the shop, but did not have any in the blacksmith shop .; that the loose pulley and lever is used in all well-planned and well regulated shops; that the plaintiff being entirely unused to machinery, did not know that there was any such contrivance for shifting the helt, or that there was danger in doing it by hand.
    Evidence was also offered tending to show that the fore man of the shop, and under whose directions all operations there were carried on and who had charge of the machinery was not a skilled machinist, nor at all acquainted with it, but was only a carpenter and had never been otherwise employed, and was incompetent to have charge of machinery and persons operating it, The plaintiff thereupon rested his case; whereupon the defendant moved the court to instruct the jury to find a verdict for the defendant; but the court overruled the motion upon the ground that there was evidence tending to- show that the process of putting on the belt by hand was dangerous, and that the defendant had failed to apprise the plaintiff of such danger.
    After an exception taken to this ruling, the defendant offered evidence tending to support its theory of non-responsibility, and at the close of the evidence on both sides again requested the court to take the case from the jury, which motion was likewise overruled. The case being then ready for the jury, the defendant submitted and the court granted a number of prayers for the instruction of the jury, the first three of which, and one (the fourth) given by the court on its own motion, were as follows;
    1. “If the jury shall be satisfied from the evidence that the plaintiff himself so far contributed to the accident by his own negligence or want of ordinary care and caution that, hut for such negligence or want of ordinary care and caution on his part the accident would not have happened, the plaintiff cannot recover and the verdict must be for the defendant.”
    2. “If the jury shall be satisfied from the evidence that the foreman of the shop, who was the superior over the plaintiff in the shops, on the Saturday preceding the Monday on which the accident happened to the plaintiff, ordered and directed the plaintiff to throw the belt in question off its pulley, and on Monday morning to send for Moore, the miller in charge of the belts and belting, to put it on again, the plaintiff cannot recover. He was bound to obey such an order issued by the foreman; and his neglect so to do was such negligence as precludes his right to recover in this action, and your verdict should be for the defendant.”
    3. “Assuming that putting on the belt was attended with danger, the question of fact to be determined by the jury is, not whether the plaintiff knew of such danger, but whether a man of ordinary observation would, in the situation of the plaintiff, have known it. If a man of ordinary care and observation would have known the danger, it matters not that the plaintiff did not know it. The latter is held to possess ordinary observation; and the jury are instructed that, if, with such observation and care, he would have known the danger, then in undertaking to put on the belt he assumed all the risks incident thereto ; and for any injury incurred in such undertaking he is not entitled to recover.”
    4. “If the jury find, from the evidence, that after he was employed by the defendant, the plaintiff voluntarily and without being required so to do, attended to the belt and habitually, and with the knowledge of defendant’s officers, placed the same in position without accident, and his course, of conduct in relation thereto was such as to induce the defendant or its officers to believe that he had the requisite skill for that purpose, or that he bad willingly assumed the duty of so placing the belt, the defendant was not in default for not having instructed him as to any danger incident to the operation.”
    The defendant excepted to the giving of this (fourth) instruction. Such of the defendant’s other prayers (refused or modified by the court) as are necessary to an understanding of the. case appear in the opinion.
    The plaintiff submitted no prayers for instruction. A verdict was rendered for plaintiff for $6,195 ; whereupon the case came to the General Term on a motion for a new trial on exception and a case.
    
      William A. Cook & C. C. Cole for plaintiff:
    As respects the duty of the master to provide proper and sufficient machinery, see Hough vs. R R. Co., 100 U. S., 213 ; N. P. R. R. Co. vs. Herbert, 116 U. S., 642; Benzing vs. Stein way, 2 Cent. Rep., 491; S. C. 22 Cent. L. J., 404.
    As to the duty of the master to use due diligence in the employment of proper and skilful servants, see N. P. R. R. Co. vs. Herbert, supra.
    
    Plaintiff was not a volunteer in the performance of the act in which he was injured. Beach, Cont. Neg., 348, sec. 120, p. 39, sec. 12; Rummell vs. Dilworth, 1 Cent. Rep., 905; S. C. 22 Cent. L. J., 333.
    There was no contributory negligence upon the part of plaintiff, as he was ignorant of the danger. Beach, Cont. Neg., 39, sec. 12, and authorities cited; Benzing vs. Steinway, supra; Parkhurst vs. Johnson, 50 Mich., TO.
    Whether there was negligence on the part of the plaintiff was a question of fact. Beach, Cont. Neg., 39, 40, and authorities cited; Hough vs. R. R. Co.; Benzing vs. Steinway; Rummell vs. Dilworth, and N. P. R. R. Co. vs. Herbert, supra.
    
    There being a conflict of evidence, the motion of the defendant to. take the case from the jury was properly overruled, and the court was correct in submitting the case to the jury. Baylis vs. Travelers’ Ins. Co., 113 U. S., 316; Phoenix Ins. Co. vs. Doster, and Grand Trunk R. Co. vs. Cummings, 106 U. S. 32, TOO.
    Enoch Totten for defendant:
    If the work of putting on this belt was a part of plaintiff’s duty, then he assumed the risk. An employee who undertakes the performance of a duty assumes the risk incident to its discharge; and this, certainly, where a danger or defect is open and obvious, which he has had an opportunity to ascertain. His opportunity to know must be held as knowledge, whether in fact he knew of the defect or not. Porter vs. Han. & St. Jo. R. R. Co., 2 Am. & Eng. R. R. Cas., 52 ; Dillon vs. U. P. R. R. Co., 3 Dill., 319 ; Mich. Cent. R. R. vs. Smithson, 45 Mich., 212, 1 Am, & Eng. R. R. Cas., 106; Batterson vs. R. R. Co., 49 Mich., 184; Richards vs. Rough, 53 Mich., 212; Sjogsen vs. Hall, 53 Mich., 274; Wachter «s. R. R. Co., 60 Md.,. 395.
    The plaintiff cannot avoid his responsibility for the want of ordinary care and prudence, by pretending that he did not have sufficient intelligence to know that it was dangerous to stand on a ladder, eight or ten feet above the floor, and put a six inch belt, recently repaired, and too short or too taut, on a thirty inch pulley, revolving at the rate of 180 revolutions each minute ; or, to take the plaintiff’s own version of it, that he “ did not know that there was a hit more danger ” involved in such a rash attempt “ than in picking up a hammer on the floor.” He was bound to know or take the consequences. He cannot rely upon pretended imbecility for his excuse. Williams vs. Churchill, 137 Mass., 243 ; Leary vs. R. R. Co., 139 Mass., 580 ; Russell «s. Tillotson, 140 Mass., 201: S. C., 1 New Eng. Rep., 444; Sweeney vs. Berlin, etc., Co., 2 Cent. Rep., 457.
    Had it not been for his own want of patience and ordinary prudence, the plaintiff would not have been injured; hence he cannot recover. Balt., etc., R. R. Co. vs. Jones, 95 U. S., 442.
    The master must furnish safe and reasonably good machinery to his servant and keep it in good order, i. e., he must exercise ordinary care. He is not under obligations to make use of the safest appliances and instruments, nor to change his machinery with every new invention, nor to introduce every supposed improvement in his appliances. He must have good but not the best machinery. Beach, Cont. Neg., 354, sec. 125; Wonder vs. Balt. R. R. Co., 32 Md., 411; Jones vs. Granite Mills, 126 Mass., 84; Keith vs. Granite Mills, 126 Mass., 90; Et. Wayne, etc., R. R. vs. Gilder-sleeve, 33 Mich., 133, 256; Burke «s. Witherbee, 98 N. Y., 562; Leonard vs. Collins, 79 N. Y., 90; Ladd vs. N. B. R. R., 119 Mass., 412; 20 Am. Rep., 331; East Tenn. R. R. vs. Duffield, 47 Am. Rep., 319; Kelly vs. Silver Spring Co., 12 R. I., 112; 34 Am. Rep., 615.
    In Kelly vs. Silver Spring Co. it was held that when an employer lias kept imperfect and unsound machinery in use for a long time, and it has been safely used by his employees, he is not liable in damages for injury to one of them, occasioned by its unfitness. See also Sullivan vs. India Mfg-Co., 113 Mass., 396; Schroeder vs. Mich. Car Co., Mich.— Jan., 1885; Hough vs. E. E. Co., 100 U. S., 213; Porter vs. E. E. Go., 71 Mo., 66; S. 0. 2, Am. & Eng. E. E. Cases, 44; Lake S. & M. S. E. Co. vs. McCormick, 74 Ind., 440; S. C. 5-, Am. & Eng. E. E. Cases, 474.
    Where the means of information of the employee are equal to or greater than those of the employer as to imperfections in machinery, the employer will not be responsible for an injury resulting from such imperfections. Beach, Oont. Neg., 363, sec. 133; Marsh vs. Ohickering, 2 Cent. Eep., 419 ; Mad. Eiver, etc., E. E. vs. Barber, 5 Ohio St., 541; Ga. E. E. Co. vs. Kenney, 58 Ga., 485; Eones vs. Phillips, 39 Ark., 17; 43 Am. Eep., 264.
    When the servant discovers that the machinery, tools, or the like, are unsafe or unfit, or that a fellow-servant is careless or incompetent, and nevertheless continues in the employment without juotest or complaint, he assumes the risk of the danger and waives all claims for damages. Beach, ■ Cont. Neg., 371, sec. 140; O’Eorke vs. Union Pac. E. Co., 22 Ecd. Eep., 189; Hough vs. E. B. Co., supra; Kelly vs. Silver Spring Co., 12 E. I., 112; 34 Am. Eep., 615; Eichards vs. Bough, 53 Mich., 212; Sjogsen vs. Hall, 53 Mich., 274; Dorsey vs. Phillips, etc., Co., 42 Wis., 583; Dillon vs. U. P. E. B., 3 Dill., 319 ; Shearm. & Bedf., Neg., 118, 120, secs. 94, 95 and note; Kielley vs. Belcher S. M. Co., 3 Saw., 500; Eandall vs. B. & O. E. E. Co., 109 U. S., 478.
    The 2ilaintiff failed to prove a cause of action and the case should be dismissed.
   Mr. Justice Merrick

delivered the opinion of the court.

This was an action to recover damages for an injury to an employee in the machi ne shop of the railroad company, resulting, as he claimed, from defective machinery and want of proper advice on the part of the railroad company, of the dangers attendant upon the operation of the machinery in question.

There were twenty exceptions taken at the trial of this case; first, to the refusal of the court to take the case from the jury at the close of the plaintiff's case; second, to the refusal of the court to take the case from the jury at the close of all the testimony on both sides; and then eighteen different exceptions upon prayers, suggesting various minute subdivisions of fact and theory with regard to the proper application of the law and the evidence in the case.

In this class of cases the attempt is constantly made to take away the case from the jury, arising from the natural impulse of counsel to avoid, if possible, the influence of human sympathies in favor of misfortune, and to avoid, too, the operation upon their minds of the law of inherent justice, differing from the rule of the common law in this: natural justice suggests, where the misfortune has occurred through a common fault, that the loss should be shared by both parties who contribute to that loss or misfortune;, whereas, the doctrine of the common law is antagonistic to the civil law, and says that where there has been a negligent contribution to the misfortune on the part of the plaintiff, he shall have no redress at the hands of the defendant.

The outline facts in the case are, that the plaintiff was employed in the machine shop of the defendant in Georgetown, and while attempting to put a belt over some pulleys, which were connected with the machinery of the shop, the belt slipped by reason of some defect in the machinery or some accident, and his arm was destroyed.

The rules of law applicable to cases of that sort have been well defined and settled so far as the Supreme Court of the United States is concerned, although there has been very great conflict of opinion in the different State courts (and, indeed, in the courts of England, until they were remedied and modified by act of Parliament) as to the extent of the liability of an employer for any misfortune growing out of an act of negligence in respect of machinery or anything else on the part of another person who was employed by the same employer. But the Supreme Court has relieved us of difficulty on the subject, and in the very latest case, decided only four months ago, it has announced that the.employee who is charged with the duty of working machinery with another employee is not a co-employee, in such a sense as to discharge the employer from responsibility for any injury to one of them which happens through the defect of the machinery, although that defect may have been brought about by the negligence of the other employee. The extent of the responsibility is defined by the Supreme Court in the case of Northern Pacific R. R. Co. vs. Herbert, 116 U. S., 652, in these words:

“ The same considerations which render him (that is the employer) responsible in such cases for the safe transportation of passengers and property, should also impose upon him an equal responsibility to his employees, so far as their safety depends upon the character and condition of the machinery and appliances used in the transportation. Where the employee is not guilty of contributory negligence, no irresponsibility should be admitted for an injury to him caused by the defective condition of the machinery and instruments with which he is required to work, except it could not have been known or guarded against by proper care and vigilance on the part of his employer.”

And then again at the bottom of page 65B of the same opinion, there is another passage desirable to quote in connection with this case.

“In Beeson vs. Green Mountain Gold Mining Co., 57 Cal., 20, the defendant, a corporation engaged in quartz mining, appointed a superintendent to supervise and manage its mining operations, with authority to employ and discharge laborers at the mine. One of the laborers thus engaged lost his life in a fire, which originated from a defective pipe, put up by a tinner under the supervision of the superintendent, and connected with the engine used to raise ore and take water from the mine. It did not appear that the deceased knew or had reason to know of the defect. In an action by his widow for damages in consequence of his death, it was held against the contention of the company, that the superintendent was not a fellow-employee of the deceased in the sense indicated by the statute; that, for the purposes of managing the business and determining what machinery should be used' and how placed, he was the representative of the company, and that the deceased was not bound to know whether a defect existed in the machinery and appliances not within his view, but had a right to rely upon the implied agreement of the company that the pipe was properly placed and constructed. It was also held that the tinner, in performing his share o the work, was not a fellow-servant of the deceased; that, as his work was done under the direction and supervision of the superintendent, it was the same as if done by the superintendent in person.”

Thus the Supreme Court of the United States has defined, with great accuracy and with proper strictness, the limits of the responsibility of the employer with respect to machinery, and with respect to his responsibility for his employees in regard to the performance of their duty towards other employees, so far as the sufficiency of the machinery and the exemption from danger by reason of its use is concerned.

This being the law, and the facts of this case being that the plaintiff was injured hy the accidental catching of his arm in a belt which he was endeavoring to put on, and there being evidence tending to show that he knew nothing whatever of the belting having been previously and perhaps imperfectly repaired, and also that the machinery was defective, and that in other parts of the machine shop provisions were made to guard against just such accidents by an arrangement which dispensed with the intervention of the person and allowed the adjustment, the gearing and ungearing of such belts, to be made by machinery, so that the man did not come in contact with it at all, it was proper that the whole matter should be submitted to the jury, both as to the sufficiency of the machinery, the care which had been used with reference to it, and the knowledge or want of knowledge on the part of the plaintiff, of the danger connected with the employment which he undertook.

Under these circumstances, it was quite impossible that the court could take away from the jury the inquiry into the facts, to wit: the sufficiency of the machinery for the purpose, and the knowledge on the part of the plaintiff, of the dangers connected with it, and of the performance of the duty of the employer to apprise him of whatever dangers might he latent, or even patent, but beyond the reach of his observation with respect to the employment which he undertook.

That being so, I say the court could not have done otherwise than to remit the whole case to the jury, and it was impossible in such a state of facts to take away from their consideration those mixed questions with regard to which no precise rule can he applied by which to measure them in the particular instance.

After the close of the testimony there were eighteen íd- • structions applied for, hut it is not the duty of this court to go into a minute criticism upon them all. It is sufficient if we find that although some of the propositions which, standing by themselves, may be good law, were rejected, there was enough given to the jury to cover all the law of the case. This was not only all that the party had a right to demand, but all that the court should have done; and it is no ground of error to reject a good and appropriate prayer, provided the law of that prayer be already sufficiently presented to the jury in other parts of the instructions which may be given.

And we may be allowed to say here, in view of the multiplicity of the prayers and exceptions taken in this case, that it is a serious vice to allow a greater number of instructions to be given to a jury about these matters of diligence on the one hand and negligence on the other, than are necessary for a full understanding of the case. It tends to darken rather than enlighten the judgment of the jury.

The only questions to he presented for the consideration of the jury in this case were, in the first place, whether the machinery was at all defective; if defective, whether the plaintiff had knowledge of it and whether the employer had reason to suppose that he had knowledge of it; and lastly, whether there was contributory negligence by the plaintiff, assuming that there was a defect in the machinery which ought to have been obviated. With regard to all those matters, the court granted the first, second and third prayers which were presented by the defendant and which contained all the law to which the defendant was fairly entitled upon the whole evidence. The fourth instruction, which was voluntarily given by the court, superadded to the others, was the subject of criticism on the part of the defendant. But when that prayer comes to be considered, so far from its being obnoxious to the objection that it takes away any right from the defendant, it is apparent that it gives it perhaps more than it was entitled to at the hands of the court. That prayer is in these words:

“Tf the jury find from the evidence that after he was employed by the defendant, the plaintiff voluntarily and without being required so to do, attended to the belt, and habitually, and with the knowledge of defendant’s officers, placed the same in position without accident, and his course of conduct in relation thereto was such as to induce the defendant or its officers to believe that he had the requisite skill for that purpose, or that he had willingly assumed the duty of so placing the belt, the defendant was not in default for not having instructed him as to any danger incident to its operation.”

In the light of what the Supreme Court has said with regard to the respective duties of employer and employee, and the obligation to impart notice of any defects which may exist in the machinery to the employee of which he has not been previously advised, it is difficult to conceive what just criticism can be based upon that instruction of the court by a defendant in the case so circumstanced, because it not only says that the employer shall be exempt if he has reason to believe, from the condition of the party, that he had the requisite skill for that purpose, but it also says that if he willingly assumed and voluntarily undertook to do the thing, then the defendant was not in default for not having instructed plaintiff about any danger incident to the operation.

With these four instructions, therefore, it seems to us that there was no occasion for the court to go any further, and that no objection could be taken if the court had stopped precisely at that point.

There are certain other objections taken by the defendant to the modification of certain of its prayers, only three of which we will notice, the eleventh, the twelfth, and the thirteenth.

By the eleventh the defendant prayed the court to instruct the jury that if they should find from the evidence that the plaintiff, for the period of ten, twelve or fifteen months, habitually put the belt in question upon the pulley, he must be held to be fully acquainted with the danger which attended the performance of that duty; and that if, after recognizing such danger, or, if, after having a sufficient opportunity to ascertain whatever danger attended the performance of such duty, etc., then the company was not responsible.

The court modified the proposition in this way: Instead of saying that he (plaintiff) must be conclusively held to be acquainted with the danger, it said that these were facts tending to prove, and from which the jury might infer, that he was fully acquainted with the danger, and that he had sufficient opportunity to ascertain and reason to know whatever danger there was;, and if they so found, then he could not recover. Now that is precisely within the line of what the Supreme Court has said with regard to the liability of the employer and the employee. Instead of ruling, as a matter of conclusive law, that he was chargeable actually with knowledge under these circumstances, the court left it to the jury to determine, and said that these facts thus recited in the prayer were evidence of the fact, but they were not so conclusive and arbitrary evidence of it as to make it a rule of law, so that it should come from the court with authority; but the facts were to be left, under the circumstances, to the jury to judge of the weight of them and of the extent of the knowledge thus acquired, and that these facts were competent to impute knowledge, provided they were not qualified in the minds of the jury by other circumstances.

So with regard to the twelfth instruction, which was:

“If the jury shall find from the evidence that on the morning of the accident the plaintiff undertook to adjust and to put the belt on the pulley and failed, and that he then called the engineer to his assistance, and that the engineer after making an effort to put on the belt, started back to his engine room and told the plaintiff to go up and put on the belt, and that he would slow down the engine, and that the plaintiff, without waiting for the engine to be slowed down, and without waiting for the engineer to come back or to tell him to go ahead, undertook to put on the belt and was injured, he cannot recover.”

This was a demand of the court to decide that these facts, as matter of law, created an exemption from liability on the part of the defendant. The court qualified the prayer in this way (and surely, in the light of the numerous authorities, no one can question the propriety of the qualification), that if he, knowing these facts, or having reason, from his experience, to believe that it was necessary to the safety of the operation, then the plaintiff was not entitled to recover'.

So with regard to the thirteenth prayer, which is in these words:

“ If the jury shall find from the evidence that, immediately before the accident, the plaintiff attempted to put the belt on the pulley and failed, and that he then called upon the engineer to assist him, and that the engineer tried to put the belt on the pulley and also failed, and that the engineer thereupon told the plaintiff to hold up or to wait until the engineer immediately went and shut off the steam from the engine, and that before the speed of the machinery and pulley was sufficiently diminished, the plaintiff attempted to put the belt on the pulley and was injured, he cannot recover.”

There again, just as in the preceding prayer, the defendant sought to obtain from the court a ruling that the enumerated facts constituted negligence on his part, so that he was absolutely precluded. The court qualified it only with this provision: “Although knowing or having reason, from his experience, to know the necessity of waiting therefor.”

The court said that if he knew or had reason to know the necessity of waiting for the slowing down of the engine, and then, with that knowledge, either direct or imputed, he rashly threw himself into danger, he must take the consequences of it. As a matter of law, the court could not say that the mere call of the engineer to him to wait, imputed to him information of a danger, and threw upon him the whole responsibility, but left it to the jury to determine, from all the circumstances, whether or not the language of the engineer was a sufficient warning of danger; and we think the court was entirely correct in submitting to the jury whether those words from the engineer did impart to him a sufficient warning so as to make him responsible thereafter for the consequences which might happen.

None of the other prayers seem to require comment. They are just in the line of the imperfections which have already been noted, and they were rightfully refused in tobo or qualified in a manner similar to the qualifications which I have just adverted to.

Under all the circumstances of the case, the court is of the opinion that no error was committed to the detriment of the defendant in this case; but if there was any, it was in too great an indulgence and relaxation of the law in its favor.

The judgment below must stand.  