
    Andrew J. Gambill, Appellee, v. William P. Bowen, Appellant.
    
    No. 16,403.
    
      Pleadings — Demurrer—Practicability of Guarding Machinery-Factory Act — Injury to Employee. , In an action under the section of the factory act (Gen. Stat. 1909, § 4679) requiring certain machinery to be guarded where practicable, an allegation that it was the defendant’s duty to guard the cogwheels by which the plaintiff was injured held to imply that such guarding was practicable, no motion having been filed to make the pleading more definite in that regard.
    Appeal from Montgomery district court; Thomas J. Flannelly, judge.
    Opinion filed June 11, 1910.
    Affirmed.
    
      O. P. Ergenbright, and T. H. Stanford, for the appellant; Stanford & Stanford, of counsel.
    
      C. J. Bryant, for the appellee; Ziegler & Dana, of counsel.
   Per Curiam:'

The plaintiff recovered a judgment in an action based upon the section of the factory act (Laws 1903, ch. 356, § 4; Gen. Stat. 1909, § 4679) requiring cog gearing in manufacturing establishments to be safely guarded wherever practicable. On appeal the defendant maintains that the petition failed to state a cause of action under the statute because it contained no allegation that it was practicable to guard the machinery upon which the plaintiff was injured. The petition did allege “that it was the duty of the said defendant ... to have all of the aforesaid cogwheels . . . properly and safely guarded.” This was a sufficient averment that such guarding was practicable, at least in the absence of a motion to make the pleading more definite in this respect.

The plaintiff’s testimony tended to show that he would not have been injured if he had exercised ordinary care, but whether that fact was conclusively established need not be determined, in view of the decision by this court in another case that contributory negligence constitutes no defense to an action brought under the factory act. (Caspar v. Lewin, ante, p. 604.)

The judgment is affirmed.  