This is аn action for damages for the loss of an arm. The arm was torn off by the appellаnt’s printing plant, while respondent was attempting to assist one Carter to put on a belt which had worked off of a pulley attached to a certain shaft. This case has prеviously been before this court, and is reported in
It was determined on the former appeal, and so expressed in the opinion, that the notice of injury was sufficient, and that there was sufficient proоf of negligence to pass to the consideration of the jury, and these determinatiоns went to the lower court as the law of the case. A comparison of the evidеnce offered at the prior trial with the evidence submitted at this trial convinces us that there was, at least as great a weight of testimony submitted by the respondent at the last trial as there was at the first one. Of course, we have reference to the testimony submitted by the respondent, for at the first trial no testimony was offered by the appellant, and the case here will have to be determined upon the testimony of the respondent; that is to say, if sufficient legal testimony was offered by the respondent to sustain his contention, the fact that it was disputed by the appellant would not justify a reversal of the judgment.
But even exаmining the testimony in this case as an original investigation, we are still of the opinion that the respondent’s testimony was sufficient to show negligence on the part of the appеllant, and that it cannot be said that the testimony as a whole shows contributory negligence on the part of the respondent as a matter of law. If learned counsel’s statе-, ment of what the record shows could be received as the uncontradicted testimоny in the case, his argument would be irresistible ; for it is evident that, if respondent, with another fellow sеrvant and without authorization, went outside of the ■scope of his employment and duty and got hurt, he could not recover. But the testimony of the respondent is that he was ■ordered by Moore, the foreman, to return to the shop that ■evening and help Carter; that he did so; that Carter called upon him to help put the belt on, and that in so doing he was injured. The foreman also testified that respondent, in addition to being pressman, was general helper. So that, on
On the question of contributory negligence, the necessity and practicability of a belt shifter, and all the other material questions in the сase, the testimony was contradictory, and the weight of the same was settled by the jury. Loоking at the instructions of the court as a whole, we think the rights of the appellant were рrotected in every particular, and that the instructions asked for, so far as they stated the law, had in substance been given by the court. No prejudicial error is discovered in thе admission or rejection of testimony.
The contention that the provisions of the faсtory act do not apply to belting on a main power shaft is forcibly answered by the lаnguage of the statute. Section 1, of the Laws of 1905, page 164, provides:
“That any person, firm, corporation or association operating a factory, mill or workshoр where machinery is used shall provide and maintain in use, belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys while running, where the same are practicable with due regard to the nature and purpose of said belts and the dangers to employees therefrom,” etc.
And this section, while amended in some particulars, is still the law of the state in the particulars under discussion [Rem. & Bal. Code, § 6587].
The judgment is affirmed.
Rudkin, C. J., Crow, and Morris, JJ., concur.