5. Master and servant, § 699*—when evidence sufficient to support finding of freedom from contributory negligence. In an action by a servant to recover for personal injuries received while repairing an elevator in one of the master’s foundry buildings, in the usual course of his employment, where plaintiff- enters the elevator shaft to remove a cleat holding the elevator gate in place, relying on the promise of the servant in charge of the elevator that he will not lower the elevator car until plaintiff signals, and where the injury is caused by the lowering of the elevator car before such signal, held that the jury might properly find from the evidence that plaintiff was not guilty of contributory negligence, and that plaintiff, in securing and relying on the promise, did all that was reasonably required for his own safety, although he did not throw off the power by the use of the safety rope, and tie it up so that the power could not be thrown on, or place timbers in the shaft to arrest the descent of the car, both of which he might have done.6. Master and servant, § 823*—when instruction on preponderance of evidence not reversible error. In an action by a servant to recover for personal injuries caused by the negligent operation of an elevator car while plaintiff was repairing the elevator gate, an instruction to the effect that the preponderance or greater weight of the evidence meant the preponderance or greater weight of only such evidence as the jury might believe, and that any evidence not believed need not be considered in determining where the weight or preponderance lay, held, under the facts of the case, not reversible error, though open to serious objection, in that the jury cannot refuse to consider any part of the evidence in determining the question of its preponderance, but must consider all the evidence, and though in another case the error might require a reversal.
