
    No. 1,047.
    Romona Oolitic Stone Company v. Phillips.
    Master and Servant.—Defective Machinery —Failure to Bepair.—Negligence.-—Where an employer has ample notice that machinery which an employe is required to use is, by reason of long continued use and wear and improper adjustment, defective and dangerous, and fails to put the same in proper condition, he is guilty of negligence.
    
      Same.—•Contributory Negligence.—Answers to Interrogatories.—Overcoming General Verdict.—An answer by a jury to interrogatories that an employe, who was injured in the line of his service while operating machinery with which he was familiar, could have avoided the injury by giving attention to where he was putting his hands and what he held in them, is not in itself sufficient to overcome a general verdict giving damages, but it should be further shown that the failure to give such attention was the result of negligence on the employe’s part.
    
      Sam®.—Promise of Master to Bepair Defect.—Beliance of Servant Upon Promise.—Increase of Bisk.—Question for Jury.—Where an employe, injured by reason of defective machinery, had continued in the service of the employer in reliance upon the latter’s promise to repair, it is ordinarily for the jury to determine whether the defect increased the danger, and whether the employe was exercising due care; and the belief of the employe that his work might be safely done notwithstanding the defect, is not always conclusive on the jury as to whether there was any danger or increase of danger on account of such defect.
    
      Same.—Promise to Bepair Absolves from Increased Bisk.—Additional Care.—Where there is a defect in machinery increasing the employe’s danger, and the employer promises to repair, and in relianee upon this promise the employe continues in the service, the latter is, for a reasonable time, absolved from the assumption of the increased risk, but he must use such additional care, in proportion' to the increased and known danger, as a man of ordinary prudence ought to exercise under the circumstances.
    
      Same.—Failure of Fellow-servant to Make Bepairs Does Not Believe Master.—Where a machine hand is injured by reason of a defective belt which the employer had promised to repair, the fact that the omission to remedy the defect occurred through the fault of another servant charged with the duty can not relieve the employer.
    
      Same.—Question of Negligence for Jury, When.—Inferences.—How Considered on Appeal.—-The question of negligence must be submitted to the jury as one of fact not only where there is room for difference of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, but also where there is room for such difference as to inferences which might be fairly drawn from the conceded facts, and, on appeal, such reasonable inferences as the jury might have drawn from the evidence, considered in the light most favorable to the party having the verdict, will not be disturbed.
    
      Same.—Instruction.—Erroneous Theory .—Where, in an action by an employe against his employer, to recover damages for injuries, the theory of the complaint is that the dangers of the service in which the plaintiff was engaged was increased by reason of defects in machinery which the employer had promised, but failed, to repair, an instruction which tells the jury that among the questions to be considered by them in determining the right of the appellee to recover is whether the place in which the plaintiff was employed was unsafe or the machinery dangerous, without any statement limiting the question to the increased hazard, is erroneous.
    Ross, J., dissents from that part of the opinion holding the complaint sufficient.
    From the Morgan Circuit Court.
    
      F. Winter, W. II. II. Miller, J. B. Elam, J. H, Jordan and 0. Matthews, for appellant.
    
      I). E. Beem, W. Hicham and W. R. Harrison, for appellee.
   Davis, J.

This was an action by an employe against his employer for personal injuries alleged to have been sustained in the course of his employment. It was tried by a jury four times in the Morgau Circuit Court. The first verdict was set aside by Judge Grubbs. It was next tried before the Hon. John V. Hadley, who set aside the second verdict returned in favor of appellee. The Hon. Henry C. Duncan, a practicing attorney, was then appointed special judge to preside in the cause. The first trial before him resulted in a disagreement of the jury. On the second trial before Judge Duncan a verdict was returned in favor of appellee for $1,500.

Over a motion for a new trial, as well as other motions made in the cause, judgment was rendered upon this verdict. Exceptions were duly reserved to various rulings of the trial judge, and this appeal is prosecuted from the judgment so rendered.

Several assignments of error are made. The complaint upon which the judgment appealed from was rendered is in two paragraphs. The assignments of error with respect to these are:

1st. That the court erred in overruling a demurrer by the appellant to the entire complaint.

2d. That the court erred in overruling a demurrer by the appellant to the first paragraph of the complaint.

3d. That the court erred in overruling a like demurrer to the second paragraph of the complaint.

4th. That the complaint does not state facts sufficient to constitute a cause of action.

These assignments may be considered together. The first paragraph of the complaint was filed in the Owen Circuit Court, from which the venue was subsequently changed to the Morgan Circuit Court. This first paragraph avers in substance that the appellee was in the employ of the appellant which was engaged in the business of quarrying and dressing stone in Owen county, Indiana; that appellee as such employe was engaged in this work; that his particular employment was in connection with the operation of a planer used to plane stones of large dimensions; that said planer was a machine operated by steam power, and consisting in part of a crosshead which carried certain bits made of iron and steel, and which were brought in contact with the stone to be planed, and made the surfaces thereof smooth; this-crosshead -weighed 16,000 pounds; that it was necessary in the prosecution of the work to occasionally raise and lower the crosshead in which these bits were placed; that it was so raised and lowered, when the machinery was in proper condition, by means of a large wooden pulley placed above .it, around which ran a lárge belt, which also ran upon a smaller pulley attached to the planer below; that when this belt was of proper strength and tension, and the pulleys in proper position the crosshead was easily raised and lowered by means thereof without danger to employes operating the planer; that prior to the 20th day of February, 1890, the belt and pulleys had, from improper adjustment, long continued use and wear, become out of repair, worn and insufficient to raise and lower the crosshead, whereby the machine became unsafe and dangerous to employes operating it; that by reason of the defective condition of the machine, as the result of said defects, it became necessary, in order to operate said machine, for employes, while hoisting and raising the crosshead, to stand in front of the belt and press upon it with great force with an iron rod held in the hand in order to increase its tension and make it lift the crosshead; that appellee, for several weeks prior to said 20th day of February, had been employed as an assistant in the operation of this planer, and that said machine gradually failed, from said defects, to perform its functions, and as the belt failed to raise the crosshead, he from time to time notified the appellant company of its impaired and dangerous condition, and that the appellant company, in each and every instance, promised to repair and put the. same in proper condition, but negligently, carelessly and without excuse failed and neglected so to do; that appellee, relying upon these promises and assurances, and believing that the. machinery would be repaired and rendered safe, continued in the employment and in the performance of the hazardous duties-mentioned, for several weeks prior to said 20th day of February; and that upon said day, while engaged in the line of his employment and in the operation and management of the planer, under the direction of appellant’s managers and superintendents, and without any carelessness, default or negligence on his part, and while in the exercise of proper caution, and owing wholly to the defective condition of said machinery as above alleged, appellee’s right hand was caught in said belting and pulleys and crushed, lacerated and otherwise injured, that such injury was permanent, and caused great suffering.

Judgment for $10,000 is asked.

The first trial of the cause was upon this paragraph of the complaint; but before the second trial a second and additional paragraph was filed. This paragraph contains the same allegations as the first with reference to the appellant corporation and the business in which it was engaged, and also with respect to the kind of machinery by which such business was carried on, and then proceeds to allege that while the plaintiff was engaged as a helper upon the planer, he was caught in the belts, pulleys and wheels of the machinery while they were running at great speed, and was thereby greatly injured; that his injury occurred solely as the result of the dangerous, defective and unsafe condition of said machinery, which had, by improper adjustment of its pulleys, shafts, belts and the machinery used in turning the power on and off the same, and by becoming worn, weak and out of repair, become unsafe and dangerous to employes engaged in the performance of their duties; that this dangerous, defective and unsafe condition of the machinery was well known to the appellant company, and that it had frequently promised to repair and readjust the same so that it would safely and properly perform its functions; that the appellant carelessly, negligently and without any excuse failed to make such repairs, but with full knowledge of its defective condition negligently permitted the same to remain out of repair; that appellee, relying upon the said promises, continued in the employment to the day of his injury, and while exercising due care, and without any fault or negligence on his part, but as a result of the dangerous and defective condition of the machinery, he was caught therein and injured.

There are similar averments as to the extent of the injury, pain resulting therefrom, etc., as those in the first paragraph of the complaint, and the damages demanded are $5,000.

To the first paragraph of the complaint, while it stood as the only complaint in the action, a demurrer for the want of facts was filed and overruled. Asimilar demurrer was filed to the second additional paragraph and also overruled and proper exception reserved.

Counsel for appellant contend that the first paragraph of the complaint under consideration does not aver negligence on the part of the appellant occasioning appellee’s injury.

This is the only point suggested or discussed as to the sufficiency of the complaint. No question is raised in argument on this branch of the case in relation to contributory negligence or assumption of the risk on the part of appellee. It is conceded, at least the proposition is not controverted, that the first paragraph of the complaint is sufficient if it charges actionable negligence om the part of appellant as the proximate cause of appellee’s injury. The substance of the argument is that the defective and dangerous condition of the machinery at the time of the accident is not shown to have been due to negligence of appellant. Counsel say “that it does not follow as a matter of law that defendant was guilty of negligence simply because it had this machinery.”

The infirmity in the argument is the fact that it appears from the allegations in the first paragraph of the complaint that the defects which created the unsafe and dangerous condition arose out of the long continued use and wear, and improper adjustment of the machinery by appellant, and that the appellant had due notice and knowledge of such defects, and the consequent unsafe and dangerous condition thereof, for several weeks prior to the accident, and that appellant negligently, carelessly, and without excuse, failed to make the necessary repairs and put the machinery in proper condition.

It is the duty of the master to exercise reasonable and ordinary care in providing reasonably suitable machinery and appliances to enable the employe to do his work as safely as the hazards incident to the business will permit. If the master fails in this duty he is responsible for any injury which may happen to the employe through defects in the machinery which were known to him, which it was his duty to repair, except where the employe has assumed the risk incident to the use of such defective machinery, or has contributed to the injury by his own negligence. Indiana Car Co. v. Parker, 100 Ind. 181; Rogers v. Leyden, 127 Ind. 51; Indianapolis Union R. W. Co. v. Ott, 11 Ind. App. 564; Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20.

It is charged, in substance, that the company provided the stone planer for the work in which it was engaged; that when the machinery was kept in proper condition, the planer could be safely used; that the company permitted the machinery (the planer) to become worn, weak, out of repair, dangerous, and defective, and that the company had actual knowledge of the defective and dangerous condition for several weeks prior to the injury, and negligently failed to make the necessary repairs.

The facts alleged, the truth of which the demurrer admits, show that the master was guilty of negligence in failing in the discharge of his duty to keep the machinery in question in proper repair, and in safe working order. It was negligence on the part of appellant to continue to use and operate unsafe and dangerous machinery with knowledge of the defects and dangers incident thereto under the facts and circumstances alleged in -the complaint. It is conceded, if the first paragraph of the complaint states a good cause of action, that the second paragraph is sufficient.

The next error assigned is the overruling of appellant’s motion for judgment on the answers of the jury to the interrogatories.

The jury returned a general verdict in favor of the appellee. They also returned answers to interrogatories propounded by each of the parties.

In answer to the interrogatories, the jury found that appellee was injured while engaged as a helper in the line of his duty in operating a stone planer in the quarry of appellant; that he received said injury because the planer was defective and out of repair; that appellant had been notified that said planer was out of order, and would not work properly before appellee was injured; that he was required by appellant to perform the service he was engaged in doing when he was hurt; that appellant promised appellee before he received his injury to repair the planer; that he was induced by such promise, and the promise to relieve him from service on the planer soon, and give him other work in the quarry, to continue in appellant’s service in the use of the planer; that his hand was drawn between the pulley and the belt by the rivets or lacing, hitting the rod and knocking his hand down; that immediately before the accident he was holding his hand from twelve to fifteen inches above, and forward of, the pulleys; that at the time of his injury appellee could see the belt and pulley, and that he understood the manner in which they operated well enough to know that he would be hurt if his hand was drawn between them; that it was not necessary for appellee to do anything more than to give attention to where Ire was putting his hands, and what he held in them to avoid getting his hands caught and drawn between the pulley and the belt; that appellee was using reasonable care to avoid his injury at the time he was injured.

In discussing the assignment under consideration, counsel for appellant say: “The whole, dispute has been, and is now, as to whether this injury happened by any negligence of the appellant, and as to whether the appellee was free from contributory negligence.” In this-action it was necessary for three things to appear, aS' contended by counsel, before appellee could recover, namely, that he was injured; that his injury happened by the negligence of the appellant, and that he himself was free from contributory fault.

This being true, if the findings of the jury upon the special interrogatories show affirmatively that either of these three essential facts does not exist, then there should be a judgment against the appellee. That appellee was injured, ánd that his injury was caused by the negligence of appellant is not controverted by the special findings of the jury. On this branch of the case, the argument of counsel for appellant is confined to the proposition that the answers of the jury to the interrogatories show that negligence on the part of appellee contributed to his injury. In this connection counsel for appellant say that the only effect of the promise to repair the planer was “to excuse appellee for continuing in the employment.” In other words, the promise of appellant to repair the planer removed all ground for the argument that appellee by continuing in the employment, under the circumstances, assumed the risks of the dangers incurred by the use of the defective and unsafe machinery. Indianapolis Union R. W. Co. v. Ott, supra.

The only question, therefore, that we are required to determine under the assignment we are considering is whether the answers to the interrogatories disclose such a state of facts as will excuse appellant on the ground of contributory negligence on the part of appellee.

It should be borne in mind that the jury by their general verdict have presumably found every material allegation of the complaint to have been proven, and that conclusion conclusively prevails in this court unless the contrary is clearly shown by the answers to the interrogatories. Such answers will not be aided by intendment. The special findings override the general verdict only when both can not stand, and this antagonism must be apparent upon the face of the record beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can be successfully called upon to direct judgment in favor of the party against whom a general verdict has been rendered. Lake Erie, etc., R. R. Co. v. McHenry, 10 Ind. App. 525; Kentucky and Indiana Bridge Co. v. McKinney, 9 Ind. App. 213; Indianapolis Union R. W. Co. v. Ott, supra.

If the answer to the interrogatory in which the jury find that appellee was in the exercise of ordinary care should be disregarded, the fact still remains that the general verdict includes a finding that he was, when he was injured, in the “exercise of ordinary care and free from fault. Now, in view of the rule of law applicable in such cases, does the conclusion necessarily follow that because appellee could see the belt and pulley at the time of his injury and understood the manner in which they operated, well enough to know that he would be hurt if his hand was drawn in between them, and that it was not necessary for him to do anything more than to give attention to where he was putting his hands and what he held in them to avoid getting his hand caught and drawn in between the pulley and belt, he is chargeable with negligence contributing to his injury.

In this connection it should also be remembered that if under all the circumstances, and in view of the promise to remedy the defect, the appellee was not wanting in due care in continuing to use the defective and dangerous machinery, or the manner in which he used the same, then the appellant will not be excused for the omission to supply proper and safe machinery on the ground of contributory negligence. If the danger on account of the use of the defective machinery was not of •so grave a character that it would deter a reasonably prudent man from incurring it, and if in the line of his duty appellee used care commensurate with the danger, he was not guilty, per se, of contributory negligence. Indianapolis Union R. W. Co. v. Ott, supra.

If the facts and circumstances which might have been proven under the allegations in the complaint are such that the answers of the jury to the interrogatories, when construed in connection with such facts and circumstances, lead inevitably to but one conclusion, and that the conclusion of contributory negligence on the part of appellee on this occasion, then appellant was entitled to judgment on the answers to the interrogatories, notwithstanding the general verdict. Conceding that attention is synonymous with care and that all it was necessary for appellee to do to avoid getting his hand caught and drawn in between the pulley and the belt was to give attention to where he was putting his hands and what he had in them, the finding is not equivalent to saying that in the performafice of the work he was doing in and about the defective and dangerous machinery, under the direction of the master, when he was injured he could, in the exercise of care commensurate with the known danger, have given such attention to where he was putting his hands and what he had in them as would have avoided getting his hand caught and drawn in between the pulley and the belt. In order to successfully perform the task which he was doing when he was injured, it may have been necessary, in the position in which he was- placed, in the exercise of care commensurate with the danger incident to the use of such defective and dangerous -machinery, for him to divert his attention, temporarily at least, from where he was putting his hands and what he had in them. The master, notwithstanding the unsafe and dangerous condition of the machinery and his promise to repair the same, had the right to expect that appellee should give care and attention commensurate with the known danger, to the performance of the work he was doing, but we can not say, -as a matter of law, in view of all the facts and circumstances which may have been shown under the issues on the trial, that he was in such fault as to render him guilty of contributory negligence simply because all that it was necessary for him to do to avoid the injury was to give attention to where he was putting his hands and what he had in them. If he had not attempted to perform the duty in which he was engaged he would not have been injured, but the fact that he undertook to do the work does not necessarily constitute contributory negligence. It may not have been consistent with the strength and attention necessary to execute the task he was assigned to do to have given the attention referred to in the interrogatory, to where he was putting his hands and what he had in them. The jury evidently made a discrimination between attention to where he Avas putting his hands and Avhat he had in them and care in doing the act Avhich caused his injury, and whether such discrimination is one founded in fact we can not determine on the answers of the jury to the interrogatories, in view of the issues and the general verdict.

The next assignment of error is the overruling of a motion for a new trial. Among other reasons stated for a new trial are that the verdict is contrary to the law, contrary to the evidence, and not sustained by sufficient evidence.

These reasons have been discussed and may be considered together.

There is evidence in the record tending to prove the following facts: Appellee, when he was injured, was thirty years of age. In August or September prior to his injury in February, he was taken off the stone-cutters’ yard, where he had been employed for sometime, to work on the planer for a feAV days until they could get a man for the work from Bedford, but he was kept continuously at work on the planer until he was hurt.- When he went to work on the planer the belts raised and loAyered the crosshead in a proper manner. In the course of a month or two the belts became so loose that they would not raise or lower the crosshead unless the employes operating the planer got up above the planer on top of an arch or beam eight or ten feet from the ground and put pressure on the belt with a stick, iron rod or hook. This was often done by appellee— some days several times—under the direction of the head workman or superintendent, for two months or more before he was injured. He generally used for this purpose an iron hook that they raked spawls off the bed of the stone with. It was a half round hoop iron, fiat on one side and round on the other, two feet long, with a hook in the end. The pressure was made by putting the stick, rod or hook against the belt and bearing down, and this pressure would put the proper tension on the belt, thus giving it greater power on the pulley, and in this manner, through the other necessary appliances, raised or lowered the crosshead to the desired position. After the machinery got in a fix so it would not raise and lower this crosshead, and appellee was put to aiding it, as herein indicated, he often asked the superintendent “if he would not fix it,” and he replied, “We will fix it,” but the belts were not changed, new ones were not put in, and the machine was not fixed. Appellee relied on the continued promises to fix it. He says his request to have it fixed was because it was an unhandy place to go; that it was inconvenient to get up there, but that he never thought there was any danger in going up there and putting the pressure on the belt, and, in his opinion, this method of raising the crosshead was safe. On this occasion they shifted the straight belt over on the tight pulley to raise the crosshead. Appellee put the pressure on the belt with the hook to raise the cross-head, and it would not raise.

In describing the manner in which appellee was injured, he says:

“How, at the time you were hurt what were you doing? I was working on the planer, and they wanted to raise the crosshead, and I got up with the iron hook.

“Who told you to get up? Mr. Bruce.

“Were you subject to his orders? Yes, sir.

“State what you did. I got up with my hook to put pressure on the belt to raise the crosshead.

“Where did you go? Right up in front of the three little pulleys on top of the arch, on top of the planer.

“How high were you from the ground? Eight or ten feet.

“Was there any other place you could go to do that work there? No; no place up near the top.

“That was the only place to go? Yes, sir.

“Well, now, when you got up there what did you do? We shifted the belt oyer.

“How did you do that? Bruce shifted, the straight belt oyer on the tight pulley to raise the crosshead, and it would not raise.

“Why would not it? It would not raise with the pressure on it. The pulleys were greasy, we oiled them, and I hollowed down to Bruce to throw me up a piece of waste to wipe the pulley off, and that maybe it would go, and he threw me up a piece of waste, and he shifted the belt back on the loose pulley, and that left the tight pulley without the belt on it, and I wiped it off, and he shifted it back, and I got caught before he shifted it back.”

In giving the particulars he says:

“I got the hook and held on each end of the hook.

“2. Illustrate how you handled it? Just like that (illustrating), had both hands, one hand on each end, and had it coming like that (indicating) on the belt to help climb over off the loose pulley on the tight pulley, and it hit the lacing or rivet or something on the belt * ’* *

“Explain fully to the jury how your hand got into the pulley-:—what position? I was like this (indicating), and the belt was coming down to me, the straight belt running towards me, and when I- put this rod on the belt, it hit the rivet or lacing, and knocked my hand between the belt and the loose pulley, and it stopped the-pulley, and the belt kept going, etc.”

"He further says if the belt was a little slack sometimes the shifter would shift the belt, and sometimes it would not, and that on this occasion he put the ‘hook against the belt coming to make it climb’ on the tight pulley.”

The superintendent testified that the belts would become stretched so they would not raise the crosshead, and that they had been tightened frequently, and that they were made tight enough to raise the crosshead, and that when they became loose they were not always tightened at once for want of time, and they then "would tighten them with a stick,” and that he did not think there was any danger in tightening them temporarily with a stick or rod. There was evidence tending to prove that it was customary for the man who ran the planer, the first man, with the assistance of the helper, to tighten the belts by cutting off the ends, punch new holes, and lace them up again, but so far as shown this was never done during appellee’s service prior to his injury. It does not appear that appellee had any notice of this custom. The evidence tends to prove that when appellee complained to the superintendent of the defect, he promised to fix it. „

Appellee further testified:

"You say the whole trouble in this case grew out of the fact that the shifter would not shift the belt? Yes, sir.

"Otherwise you would not have been touching the belt at all? It would not climb. I would not have been touching it on the loose pulley. * * *

c‘You had to do that because the shifter would not shift it readily, and you were hurt? Yes, sir.’'

Also, that the belt sometimes refused to go easily off the loose pulley on to the tight pulley, and that it was then necessary to aid it in the way of the application of pressure—the coming ab'ove indicated.

On the third of May, after appellee was injured, he returned to work for appellant and ran the big planer on which he was hurt, until the 18th of- August. It was during all this time in the condition it was in when he was hurt and worked in the same way. The employes continued during that time to go' up and assist the belts and work the shifters as they had done at and before the time appellee was injured.

Appellee appears to have been of the opinion, prior to his injury, that there was no danger on account of the defects. Whether this was his opinion afterwards does not appear, except it is shown that after his injury he never assisted in tightening the belts or helping the shifters. This work was done by other employes. With full knowledge of the defects and experience in the work, his opinion was, in our opinion, entitled to great weight on the question that there was no danger on account of the defects, but his opinion was not conclusive on the jury.

In view of the defects, the situation described in the evidence, all the attendant circumstances and the inferences fairly deducible therefrom, and the fact that except for the defect the accident in question could not have occurred, it was for the jury to determine whether the defects created or increased the danger.

It is true there was ample evidence tending to prove that appellee was, when he was injured, doing work that was safe if done with reasonable care at a place where he was not exposed to great danger if he .was giving attention to what he was doing, and that all the parties, employer and employes, conversant with the situation, believed that there was no increased danger in doing this work. The appellee appears to have had full knowledge of the situation and to have been as capable of judging of the danger incident to the work in which he was engaged as anybody.

Where it is shown in such case that the machinery has become defective, which defect the employer has promised to remedy or repair, and an employe who continues in the service in reliance on such promise is injured by reason of such defect it is ordinarily a question for determination by the jury whether such defect increased the danger, and whether the appellee was in the exercise of due care. The opinion or belief of the employe that the work might be done with safety, notwithstanding the defect, is not always conclusive on the jury, on the question whether there was any danger or increase of danger on account of such defect.

Where there is a defect in the machinery increasing the danger of the employe, of which defect he complains to the employer and the employer promises to repair the defect, on which promise the employe relies and continues in the employment, he is, for ■& reasonable time, absolved from the assumption of the risks of such service growing out of the defects, but it is the duty of the employe to use such additional care in proportion to the increased and known dangers as a man of ordinary prudence ought to exercise under the circumstances.

It was essential to a recovery by appellee, to prove that appellant was guilty of negligence, and that such négligence on the part of appellant was the proximate cause of the injury sustained by him, and that appellee was free from fault contributing thereto.

The evidence is not clear and satisfactory to us on these propositions. There is some evidence, however, in the record tending to prove that the machinery was-defective; that appellant, with knowledge of the defect, promised to repair it; that appellee was injured by reason of such defect. We can not say, as a matter of law, under the circumstances disclosed by the evidence, that the inference that the danger was increased by the defect,, and that appellee was free from fault contributing to the injury, was not authorized.

It is true that one employing men to operate machinery where belts are used is not required to determine when they shall be tightened or loosened, or to control any such matters of ordinary adjustment. It is the duty of the master to keep the machinery in a mill of this kind in proper repair and in reasonably safe working order. When the belts become loose and the shifters and pulleys refuse to perform their functions, and the employer is notified of the defects and promises to make the necessary repairs, the fact that the omission to remedy the defects occurred through the fault of another servant charged with the duty, can not relieve the employer.

On the theory on which this case was prosecuted, and which there was some evidence tending to sustain, the duty was owed to appellee directly. When attention was called to the defects, appellant promised to make the repairs. As we have before observed, it is not shown that appellee had ever been charged with this duty, and the jury was authorized to draw the inference that the duty would be performed by appellant, and that appellant was not relying on the men operating the planer to cut and shorten the belts and repair the shifter and pulleys in such manner as to make the machinery perform its functions in the proper way.

In the view we take of the case, this court would not be authorized in saying there was -no evidence authorizing the jury to infer negligence on the part of appellant, and that appellee was free from fault.

In Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39, Judge Coffey says: ‘ ‘The question of negligence must be submitted to the jury as one of fact, not only where there is room for difference of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, hut also where there is room for such difference as to inferences which might be fairly drawn from conceded facts.” Kentucky and Indiana Bridge Co. v. McKinney, supra.

In this court, such reasonable inferences as the jury might have drawn from the evidence considered in the most favorable light in the interest of appellee will not be disturbed.

The sixth reason for a new trial calls in question the correctness of each of the instructions given by the the court. The second instruction is as follows: “That at the time the plaintiff received the alleged injuries the defendant was a corporation and he in its employ, there does not seem to be serious controversy. Then the question arises, were either the belts, pulleys, machines or other appliances out of repair? Was either in an unsafe, or dangerous or defective condition? Was either one out of repair? Was the place in which he was working at the time of the reception of the injuries dangerous or unsafe? If any of the machinery was defective or out of repair or in a dangerous condition, what was it? Which particular piece was unsafe? What, if anything, was unsafe about the premises-where the plaintiff was laboring? These are questions for you to answer in forming your verdict. Then, again, if you find any part of the machinery was unsafe or any of the appliances dangerous which directly contributed to the injury complained of, was that fact known to the plaintiff? and if so known to him, was it known to the defendant or could it, by the exercise of reasonable care, have known of such condition? These are also questions for you to determine.”

The theory of the complaint is that the machinery, through improper adjustment and long continued use and wear, had become out of repair, and that by reason of such defects it had become unsafe and dangerous. In other words, that the dangers of the service in which appellee was engaged had been increased by reason of such defects arising out of the failure to repair.

The only question to be determined on this branch of the case was whether the unsafe and dangerous condition of the machinery grew out of the alleged defects. Whether the place in which he was working at the time he was injured was unsafe, or whether the machinery was dangerous, was not a question involved in the case except in so far as the unsafety or danger was the result of the defects growing out of the failure to repair the machinery. The instruction suggests to the jury that among the. questions to be considered by them in determining the right of the appellee to recover was whether the place in which he was employed was unsafe or the machinery dangerous. The fact that the place was unsafe or the machinery dangerous did not, under the issues, entitle appellee to recover. There may have been, and perhaps was, more or less danger connected with the service when the machinery was in good working order. The only right of action which appellee could maintain under the circumstances was because of the increased hazards growing out of the defects on account of the failure to keep the machinery in proper repair. Conceding, without deciding, that the other instructions, when considered as an entirety, correctly state the law applicable to the case, we are of the opinion, in view of the unsatisfactory character of the evidence on the vital questions involved in the case, that the instruction under consideration was calculated to mislead the jury, and we are not satisfied that such erroneous impression, if created, was removed from the minds of the jury by the other instructions. City of Lafayette v. Ashby, 8 Ind. App. 214.

Filed Nov. 20, 1894.

On account of the unusual length of this opinion, we will not consider other questions presented which may not arise on another trial.

Judgment reversed, with instructions to grant a new trial.

Dissenting Opinion.

Ross, J.

I am unable to concur in the opinion of the majority in holding that the complaint states a cause of action. The majority opinion says that appellant’s contention simply relates to the sufficiency of the complaint as alleging negligence against appellant and want of negligence on the part of the appellee. Even were I to admit that appellant’s counsel simply insist that the complaint is insufficient because it fails to sufficiently allege negligence on appellant’s part, and want of negligence on the part of appellee, I am still of the opinion that the facts alleged fail to show .culpable negligence on appellant’s part, and do show that appellee was either guilty of contributory negligence, or that his injury was the result of a risk assumed. But I think counsel go further and insist that the mere promise to repair is not sufficient to create the exception to the general rule, which is that a servant who continues to use defective machinery, after he knows of its defective condition, assumes the extra hazard occasioned by the defect.

Counsel in their brief say: “The paragraph then proceeds to allege that the plaintiff complained of the condition of the machinery described, and that the defendant promised to repair it and then negligently and carelessly failed to keep this promise. We maintain that it is not enough to allege negligence and carelessness in not keeping a promise to repair. * * * The averments should simply have been that the machinery was not repaired within a reasonable time.”

As a rule of pleading, the facts alleged must be such as will warrant the court in declaring as a question of law that the defendant was guilty of culpable negligence.

‘ ‘We suppose it to be clear that when a plaintiff charges a defendant with a negligent breach of duty, he must state facts from which actionable negligence can be inferred, for the general rule is that negligence can not be presumed. This general rule is uniformly applied to employers and employes, and it is presumed that the employer has done his duty. This presumption is, in effect, a prima facie case in favor of the employer. To defeat this presumption of duty performed, it is necessary to state facts rebutting the presumption, otherwise there can be no cause of action. A violation of duty must, therefore be shown, otherwise the complaint must be judged to be bad. This is so because culpable negligence can not be presumed in aid of a complaint. ’ ’ Brazil Block Goal Co. v. Young, 117 Ind. 520.

A servant, when he engages in the master’s service, is presumed to understand the nature and hazard of the employment, and assumes all the ordinary risks and obvious perils incident thereto. The risks thus assumed are such as arise from the service to be performed, whether from the use of certain machinery or from working in a particular place. They are assumed the same, whether they arise from the use of defective machinery or an unsafe place to work, if known to the servant, as if arising from reasonably safe machinery or a reasonably safe working place. Atlas Engine Works v. Randall, 100 Ind. 293.

All known dangers, whether from defective tools, machinery and appliances, or the unsafe condition of the working place, are incident to the particular work connected with their use, hence are assumed by one engaging to work with them. Huddleston v. Lowell Machine Shop, 106 Mass. 282; Naylor v. Chicago, etc., R. W. Co., 53 Wis. 661.

It is only the known dangers which are so regarded, for the servant is not compelled to seek for latent defects but may rely upon the assumption that the master has furnished machinery, tools, and appliances, as well as a place to work, which are free from latent defects; in other words, that the master has used reasonable care to see that no latent defects exist.

“When a servant enters upon an employment which he knows is hazardous, either by reason of the nature of the employment, or because of defective or otherwise dangerous appliances, he may well be said to assume this risk. Knowing when he solicits and accepts the employment, that if it is given him he must use defective tools, he contracts to take that as one of the risks of the service. Whether anything is said of the dangerous character of the employment, or of the defective and dangerous appliances or not, if the dangers and defects are of such character that they are equally known to or open to the observation of both employer and employe, it can well and justly be said they stand on a common footing. Acceptance of the employment is an acceptance of the attendant risk. ” Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327.

And, as the Supreme Court of Ohio, in the case of Columbus, etc., R. R. Co. v. Webb’s Admx., 12 Ohio St. 475, says: “Whether the employe seek employment in a machine-shop, or on board a steamboat, upon a railroad train, or to pilot rafts over dangerous rapids, to labor in a powder mill, or to serve upon a whale ship, or upon a voyage of discovery in the Arctic regions; in each and all of the several employments and positions chosen, the employe, by entering the service voluntarily, takes upon himself the hazard and dangers properly incident to the service in which he engages; and the employer is in no sense, from the relation they so sustain to each other, a warrantor of the safety of the employe.”

Not only does the servant assume the risks naturally arising from, the employment, biit he also assumes such extraordinary risks as he may knowingly and voluntarily encounter. Smith v. Winona, etc., R. R. Co., 42 Minn. 87, and cases cited.

But where the servant is sent by the master into dangerous places, to work with defective tools, machinery and appliances, or put to dangerous tasks, of the risks of which he is ignorant, it is the duty of the master to-give him notice and put him on his guard, so that he may protect himself from injury.

In the case of Michigan Central R. R. Co. v. Smithson, 45 Mich. 212, a leading case in this country, Cooley, J., speaking for the court, says: “No railroad' company, and no manufacturing or business establishment of any kind, is bound at its peril to make use only of the best implements, the best machinery and the safest methods. The State does not require it; and .could not require it, without keeping such minute and constant supervision of private affairs, and interfering with such frequency as under all circumstances would be irritating and damaging, and in many cases would become intolerable. In the main the State must leave every man to manage his own business in his own way. If his way is not the best, but nevertheless others, with a full knowledge of what his way is, see fit to cooperate with him in it, the State can not interfere to prevent, nor punish him in damages when the risks his servants voluntarily assume are followed by injuries.”

The true rule as we gather it from the adjudicated cases is that a master may use defective and unsafe machinery, tools and appliances in the operation of his business, and those who engage in his service knowing of their defective and unsafe condition, or such defects and unsafeness being open and obvious, assumes the risks incident to their use in such condition. But when the defects or unsafeness is latent and unknown, his assumption of risks is only of such as are incident to their use in their Apparent condition. So ' if they appear to be reasonably safe and free from defects the servant may assume that they are so, and he has a right to rely upon such assumption. The presumption is that the master has performed his duty, and that the machinery, tools and appliances with which the servant is to work are as they appear, and to that extent reasonably safe and suitable for that purpose. The servant has no right to assume that they are safe and suitable if they appear otherwise, for if he undertakes to use them he is presumed to know their condition, so far as it is patent, and to have contracted accordingly, hence if injury befalls him by reason of such defects as were open and visible when he accepted employment, he can not recover therefor, because that was one of the incidents of the service. Where the servant enters into the service of. a master knowing that the machinery with which he is to work is unnecessarily dangerous because of its defective condition, he is prima facie presumed to know the dangers incident to its use, and he assumes the risks incident to its use in that condition.

“It is for those who enter into the employments of a dangerous character, or who work at dangerous places, to exercise all that care and caution which the nature of the employment or the situation in which they are employed demands.” Cincinnati, etc., R. W. Co. v. Long, Admr., 112 Ind. 166.

If the machinery, tools and appliances, or the working place become defective and unsafe for use after his entry into the service, and he knows of their defective and unsafe condition, and remains in the master’s service continuing to use them, he thereby assumes the extra hazard occasioned by such defect. Parke County Coal Co. v. Barth, 5 Ind. App. 159; Becker v. Baumgartner, 5 Ind. App. 576; Kentucky and Indiana Bridge Co. v. Eastman, 7 Ind. App. 514; Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191; Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75; Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20; Louisville, etc., R. W. Co. v. Sandford, Admx., 117 Ind. 265; Brazil Block Coal Co. v. Young, 117 Ind. 520; Pennsylvania Co. v. O’Shaughnessy, Admr., 122 Ind. 588; Rogers v. Leyden, 127 Ind. 50; Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156; Ames, Admr., v. Lake Shore, etc., R. W. Co., 135 Ind. 363.

“If the danger is known and the servant chooses to remain, he assumes, it would seem, the risk and can not recover. He might leave if he chose, but, choosing to remain, he can not remain at the risk of the master. Every employer has a right to judge for himself how he will carry on his business, and workmen having knowledge of the circumstances must judge for themselves whether they will enter his service, or, having entered, whether they will remain.” Buzzell v. Laconia Mfg. Co., 48 Me. 113.

And the Supreme Court of Massachusetts, in a recent •case, says: “It is a familiar principle, that, if a servant, capable of contracting for himself, and with full notice of the risk he may run, undertakes a hazardous employment, or to put himself in a hazardous position, or to work with defective tools or appliances, no liability is incurred by the master for injuries received from these hazards.” Hatt v. Nay, 144 Mass. 186, and cases cited.

“The employe has a right, until he acquires knowledge of danger, to act upon the assumption that his employer will use ordinary care to provide safe appliances; but when he becomes fully informed of the danger, he can no longer act upon this assumption. Knowledge puts, an end to his right to assume that the master has done his duty.” Indianapolis, etc., R. W. Co. v. Watson, supra.

It is well settled, as a general rule, that while the servant assumes the extra hazard occasioned from known defects, there is an exception to the rule, and with the exception we have to deal in this case. The exception is where the means or appliances are defective and the servant has complained of them, and the master, in answer to such complaints, has promised to make them safe, and the servant relying upon such promise and believing that they have been made safe, continues in the master’s employment and to use such means and appliances without having made an inspection to see that the defect has been remedied. The mere fact of the promise will not, ,as matter of law, entitle the employe to recover.

In the case of Gowen v. Harley, 56 Fed. Rep. 973, the court, in speaking of this exception to the general rule, says: “To the last rule there is this exception: If a servant who is aware of a defect in the instruments with which he is furnished notifies the master of such defect, .and is induced, by the promise of the latter to remedy it, to remain in the service, he does not thereafter assume the risk from such defect until after the master has had a reasonable time to repair it, unless the defect renders the service so imminently dangerous that no prudent person would continue in it.”

Judge Wharton, in his work on Negligence (2d ed.), section 220, speaking of the exception, says: “The only ground on which the exception before us can be justified is that in the ordinary course of events the employe, supposing the employer has righted matters, goes on with his work without noticing the continuance of the defect.”

‘ ‘A servant can not continue to use a machine he knows to be dangerous, at the risk of his employer,” says Pollock, C. B., in Dynen v. Leach, 40 Eng. Law and Eq. 491.

Society has an interest in the lives of all its members, and no one has a right to voluntarily cast himself in the way of a known danger.

In actions of this character where an employe seeks to recover damages from his employer for injuries received while in the discharge of his duties, on account of defective machinery, one of two questions ordinarily arises relative to the employe himself, namely:

1st. Was he guilty of contributory negligence?

2d. Was the injury the result of the risk which he assumed?

If he contributed to his own injury, the law affords him no relief, neither can he recover if the injury is the result of a hazard naturally incident to the service.

To determine which of these questions arises under a given state of facts is not always easy of solution. In most of the adjudicated cases no distinction has apparently been drawn between these two classes of cases, and for that reason general rules of law have been announced, which, although correctly stated, have no application to the place under consideration. Some courts say that if an employe continues to use defective machinery, knowing its condition, and is injured, he is guilty of contributory negligence; others, however, hold that that is not a question of contributory negligence, but rather whether or not by continuing to use it he assumed the risk. The distinction is forcibly stated in Beach on Con. Neg., section 139, as follows: “Assuming the risks of an employment is one thing, and quite an essentially different thing from incurring an injury through contributory negligence. It is not contributory negligence per se to engage in a dangerous occupation. Men may properly and lawfully do work that is essentially dangerous work, or work that is, for some reason or another, more than ordinarily dangerous for the time being, and to contract to do such work is not, in itself, an act of negligence.”

A servant may, therefore, know that his work is more than ordinarily dangerous on account of defects in the machinery which he is to use, or the unsafe condition of the place where he is to work, and yet he is not guilty of contributory negligence in doing it. Contributory negligence does not consist in undertaking to do a thing known to be dangerous, but having undertaken it, in failing to use every reasonable precaution to avoid being injured while performing the work.

While it may be almost certain death for a fireman to go into a burning building in an attempt to save life or property, yet if he knows the danger, and accepts the employment, and in the performance of that duty is injured, his right of recovery is not barred because of his contributory negligence, for he may have exercised the highest possible degree of care, but he is barred because the injury was the result of one of the risks assumed by him. The same may be said with reference to many employments, in the performance of the duties of which the danger is imminent and continuous.

From the facts alleged in the complaint under consideration, it is evident that the defect complained of was open and apparent, and to use the machine in that condition as dangerous at the time appellee was using it, and was injured, as it was when he complained of its condition, and appellant made the promise to repair, the question then arises: Had the appellee a right to close his eyes to the known danger, and assume that he would not be injured simply because the appellant had promised to repair the defect? In other words, can an employe knowingly cast himself in the way of danger, and in the event he is injured, hold his employer answerable therefor, because the employer had promised to remove the danger?

An employe can not encounter a known danger voluntarily, and, if injured, hold his employer to account therefor. Meador v. Lake Shore, etc., R. W. Co., 138 Ind. 290.

It is an old and settled rule of the common law that none can maintain an action for an injury where he has consented or contributed to the act which occasioned it. To him applies the maxim u volenti non jit injuria.”

It is firmly settled in this State that in an action brought by an employe against an employer to recover for injuries received on account of defective machinery, the plaintiff shall allege and prove knowledge on the part of the defendant and want of knowledge on his part of the defect complained of. Kentucky and Indiana Bridge Co. v. Eastman, supra; Evansville, etc., R. R. Co. v. Duel, supra, and cases cited.

As heretofore stated, there is an exception to this general rule requiring the employe to show that he had no knowledge of the defect which caused the injury, when the facts, show that he did know of it and complained to his employer and was induced to continue in the service under a promise to remedy the defect. But the facts alleged must be clear and explicit in order to create the exception. They must in themselves create the exception in order to warrant the court in holding that he did continue in the service at the risk of the employer and not at his own risk. The rule absolving the servant from the risk is an exception to the general rule, and to create it facts must be averred showing not only that the master promised to repair, but that the promise was made within a reasonable time prior to the injury, and that the danger from using the machinery in its defective condition was not great or imminent. These are the facts which create the exception, and in order to take the case out of the operation of the general rule these facts must be specially averred, otherwise the general rule must prevail.

When a master lulls his servant into a feeling of security by promising to repair defective machinery, and the servant, ignorant of the failure to repair, uses it in its defective condition and is injured without fault on' his part, the master is liable.

It is here alleged that the belt and pulley which operated to raise the crosshead were out of repair, worn and insufficient for that purpose; that the appellee was acquainted with its defective condition, and that it was dangerous to operate it in that condition; that appellee, from time to time until February 20, 1890, the day he was injured, notified appellant of its condition, and appellant promised to repair it, but appellant failed and neglected to do so; that he continued to use it, knowing the repairs had not been made, and on account of its defective condition was injured.

When appellee alleged that he had complained to the appellant of the dangerous condition of the belt and pulleys, he confessed his knowledge of their defective and dangerous condition, hence the legal presumption arises that if he continued to use them in that condition he assumed the risks incident thereto.

The pivotal question then is: Do the facts alleged create the exception to this general rule?

When a master is notified by his servant of the unsafe or defective condition of the machinery which he has furnished such servant with which to work, it is his duty to make the repairs within a reasonable time, and the servant, unless he can see that the repairs have not been made, has a right to assume, after the lapse of a reasonable time, that the repairs have been made safe. But if the servant remaining in the service continues to use defective machinery, after a reasonable time for making the repairs has elapsed, knowing it has not been repaired, and is then injured on account of the defective condition of the machinery, he can not recover. 14 Am. & Eng. Encyc. of Law, page 356, paragraph 13, and cases cited. And when a servant continues to use the machinery, which he has complained of to his master as being defective and which the master has promised to repair, during the reasonable time allowed the master to make such repairs, if the defect is so glaring and the danger from its use in that condition such that a man of common prudence would not use it, by such continued use he assumes the extra hazard incident thereto, and can not recover for any injury resulting therefrom. Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20; Conroy v. Vulcan Iron Works, 62 Mo. 35.

Appellee avers in his complaint that he notified appellant and that appellant promised to make the repairs. It is not averred when the notice was given or the promise made. To allege that from time to time until the day he was injured he notified the appellant does not advise the court of the time when the notice was given. The right of appellee to recover depends upon the statement of facts, which create an exception to the general rule which we have stated, and in order to do so the facts stated must be such as will warrant the court in inferring negligence.

This is necessary because the law presumes that the master has done his duty, and this presumption must be overcome by the statement of such facts as will show a breach of such duty. Pennsylvania Co. v. Whitcomb, Admr., 111 Ind. 212, and cases cited.

In order that appellee’s complaint state a cause of action, it is necessary that the facts alleged overcome two presumptions which naturally arise against him and in favor of the appellant, namely: first, that the appellant was mindful of its duty and performed it, and second, that the appellee, knowing the defective and dangerous condition of the machinery, by continuing to use it assumed the risk.

If the facts alleged fail to overcome either of these presumptions, no cause of action is stated.

In Indianapolis, etc., R. W. Co. v. Watson, supra, Elliott, C. J., in speaking for the court, says: “Where there is a promise to repair which induces the employe to continue in the service, then, doubtless, he may, for a reasonable length of time, rely on the promise and continue in the service, unless the danger of continuance, without a removal of the cause of it, is so great that a reasonably prudent man would not assume it. Hough v. Railway Co., 100 U. S. 213; Loonam v. Brockway, 3 Rob. (N. Y.) 74; Illinois Central R. R. Co. v. Jewell, 46 Ill. 99; Crichton v. Keir, 1 C. Sess. case (third series) 407.

“Some of the cases go farther and assert that the promise of the employer exonerates the employe entirely, even though the continuance in the service is known to him to be constantly and immediately dangerous. Fort Wayne, etc., R. R. Co. v. Gildersleeve, 33 Mich. 133. We are not inclined to adopt this view. Our opinion is, that if the service can not be continued without constant and immediate danger, and the danger and its character are fully known to the employe, he assumes the risk if he continues in the service. It is a fundamental principle in this branch of jurisprudence, thatone who voluntarily incurs a known and immediate danger is guilty of contributory negligence, and we are unable to perceive why a promise should relieve the party injured through his own contributory fault. If the danger is not great and constant, then such a promise may well * relieve him; but where it is great and immediate, and is of such a nature that a prudent man would not voluntarily incur it, a promise does not nullify or excuse the contributory negligence. Even if there be a promise by the employer, the employe must not subject himself to a great and evident danger, since this he can not do without participating in the employe’s fault. The community have an interest in such questions, and that interest requires that all persons should use ordinary care to protect themselves from known and certain danger. A man who brings about his own death or serious bodily injury sins against the public weal. All must use ordinary care to avoid known and immediate danger, although it is not the • assumption of every risk that violates this rule. When the line of danger, direct and certain, is reached, there the citizen must stop, and he can not pass it, even upon the faith of another’s promise, if to pass it requires a hazard that no prudent man would incur.” See, also, Conroy v. Vulcan Iron Works, supra. The-court in the above case has expressly declared that when danger is imminent it is contributory negligence on the part of the servant to encounter it, even though the master has promised to remove the danger.

I think the learned judge delivering the opinion in ■that case failed to make the proper distinction, for lie, in effect, says that it is contributory negligence for an employe to undertake to perform work when the attendant danger is great or imminent. A man may be employed to descend into the depths of the earth to rescue a fellow-man overcome from damp gas in a coal mine; he may know that to do so subjects him to the greatest peril, and that the danger is so great and imminent that he is the only man who is willing to undertake the task and run the risk, and yet can it be said that he is guilty of contributory negligence simply because he is willing to risk his life in order to save that of a fellow-man? True if we apply the rule that an ordinarily prudent man would not undertake it, we know that judging from what the average man, taken from the ordinary walks of life (the merchant, mechanic, farmer or day laborer), would do, they would not undertake it; nevertheless I do not hesitate to assert that any man whose courage is such that he is willing to brave any danger to save the life of his fellow-man, will not be declared by any court to have been negligent in doing so. To face such a danger is not contributory negligence, but the party undertaking it assumes the risk.

If, however, we accept the other theory, that the servant can not be said to assume the risk by continuing to work with defective machinery under promise of the master to repair, yet he is guilty of contributory negligence if he continues such use when the danger is imminent. True the master is negligent in that he fails to remove the defect as promised, and thus lessen the danger to the servant, but the servant is equally negligent if he continues to use machinery which he knows, from its defective condition, will injure him. The negligence which entitles him to recover must be exclusively the master’s, and if he contributed thereto he has no right of action. When it is not contributory negligence for the servant to knowingly use defective machinery from the use of which, in that condition, he may assume that injury will not probably result, negligence can not be imputed to the master for failing to repair it. The master is not bound to furnish absolutely safe machinery, but is only to furnish such machinery as is reasonably safe. .When it is reasonably safe, the master has done his duty, and the risk of injury then belongs to the servant. If the machinery becomes unsafe and dangerous by reason of defects, the duty of both master and servant are equal, the one to repair and make it reasonably safe, and the other not to use it until such repairs are made. The promise of the master does not mislead the servant unless he is ignorant of the failure to keep it. By such a promise no duty is imposed upon the master of exercising a greater degree of care for the servant’s safety than the servant himself is bound to exercise for his own protection. In fact no man is ordinarily prudent who does not exercise a greater degree of care for his own protection than the law exacts, from another for his benefit.

Following these and the many other adjudications, I think that a complaint to recover for an injury received on account of defective machinery known to be defective by the servant, is not sufficient unless it is alleged not only that the master promised within a reasonable time prior to the injury to remedy the defect complained of, but that from the continued use of the machinery in its defective condition there was no probable or imminent Ranger. For if, in sucli condition, that with the utmost skill and care danger was still imminent to one using it, and a servant continued to use it in that condition, he can not be said to be ordinarily prudent.

No prudent man will knowingly place himself in the way of danger.

When the facts alleged show knowledge on the part of' the plaintiff of the defects complained of, the law presumes he was negligent if he continued its use in that condition, and the burden, as heretofore stated, was upon him to show that the danger from its use in that condition was not great or imminent. The facts alleged fail to make such a case.

The demurrer should have been sustained to each paragraph of the complaint.

Filed Nov. 20, 1894.  