(1) Plaintiff’s intestate, J. W. Harris, who was then in the service of the defendant (appellant) as “washer foreman,” was killed by being hit by a fragment of metal thrown off of a rapidly revolving belt wheel used in defendant’s plant. The case went to the jury on the issues made by a general traverse of the averments of the first count, and several pleas of contributory negligence. The count was drawn to state a cause of action under the first subdivision of our Employers’ Liability Statute (Code, . 3910), and described the defect in the condition of the ways, works, etc., as consisting in the fact that the belt wheel “had in time passed been cracked or broken, and had been patched, and was old, worn, and unsafe.” There was evidence tending to establish every phase and feature of these descriptive averments. There was evidence to the effect that this wheel had been at least twice, if not thrice, previously patched; that it was worn; and (by the witness Wingo, with other testimony) that it was an old wheel. Under the circumstances shown by this record, it was a question for the jury’s consideration whether there was culpable negligence, attributable to the defendant, with respect to the discovery or repair of this defective belt wheel. The fact, to state the effect of tendencies of the evidence, that it had previously broken while *265in rapid revolution, that it had been patched at least twice before this tragedy, that its function was to transmit to other machinery, through a belt, the power the engine imparted to it, that it was thereby driven to rapid revolutions, thus subjecting its unity to the strain of centrifugal force against the effect of which on its parts it had not been theretofore efficient to'withstand, that it was repaired, after breaks, by a process of brad ding a distinct piece of metal in or across the space in the rim of the wheelwherefrom the original or the supplied part had been thrown off or broken away, lead very plainly to the conclusion that only the jury could decide the issue of negligence vel non as charged in the first count of the complaint.
(2) It was for the jury to consider whether, under the circumstances disclosed by phases of the evidence, there was negligence with respect to the discovery or the repair of this defective wheel as a wheel. The evidence is without dispute that a fragment of the metal then forming a part of the rim of the belt wheel caused Harris’ death. Unless his contributory negligence intervened to defeat a recovery, it is obvious that the proximate, negligent cause,of his injury and death — if the jury concluded to negligence as averred in the first count — was the blow inflicted by the piece of metal thrown from the rim of the rapidly revolving belt wheel. Whether this piece of metal was that put on the • wheel in the process of repairing it or was a piece originally a part of the rim, and then for the first time disengaged, was, under the evidence, an inquiry peculiarly within the jury’s province to decide. It was impossible, in the light of the evidence and of the conflicting inferences generated by the evidence, for the court to say that, even if the piece of metal inflicting the injury was the result of a “new break,” its release from its place in the rapidly revolving wheel was not to -be ascribed, or rather was not ascribable, to an effect wrought by the process employed to repair the belt wheel whereby an unwelded piece of metal was merely riveted to .the ends of the broken arc of the rim of the wheel. The court properly declined to take from the jury’s consideration the issues made by the averments of count 1. As indicated, the averments of count 1 charge a defect in the condition of the belt wheel as a unit in the plant’s construction and operation: In some parts of the argument of the appellant it seems that an assumption is indulged that the defective condition described in that count was a defective condition restricted to only *266the part of the belt wheel added thereto by the bradding process to which reference has been made, and that the means of Harris’ injury was limited by the averments to a blow inflicted by the flying off of the part of the belt wheel thus riveted thereto.' Such an interpretation of the count cannot, as has been stated, be accepted. The repeated failure of the wheel to withstand the disengaging effect of the natural tendency of rapidly revolving bodies to throw off that part or those parts not so securely attached as to resist the operation of this natural law may — in the jury’s necessary to be taken judgment of what was at least reasonable care and precaution in the circumstances shown to have been known .to competently authorized representatives of the defendant — have been an entirely sufficient warning to- those responsible as the representatives of the common master that as a unit in that service this belt wheel was due either to be removed from its place or not used in that particular service, or repaired to a better, safer end than was done. The second break, precéding Harris’ injury, might have been found to contradict the assumption that as thus repaired it was good and reasonably safe. Plainly, this wheel was not as good, as safe, as it was before many inches of its arc gave way, for it is to be supposed that such wheels are properly balanced in their original construction; and to brad in a broken place in the rim another or other metals might be found to have. contributed to the destruction of the evenly distributed balance originally designed, thereby imposed upon the places where the riveting was made a greater strain to retain the new part as an element of the rim of the wheel. These considerations, and others might be added, justified the trial court in refusing defendant’s requested charges 2, 3, and 4, all of which proceeded upon the erroneous hypothesis that the only lead, under pleading and evidence, to liability was that the repair was itself and alone negligently made; whereas other considerations were present which the determination to repair, after the manner undertaken, may not, in due prudence, have been accorded proper influence or weight.
(3, 4) Four excerpts from the oral charge of the court, together with an explanation given by the court after the exceptions wére taken, constitute the remaining assignments of error urged in the brief. These excerpts, together with the court’s explanation, when read in the light of the full charge, did not *267qualify the plaintiff’s obligation to carry the burden of proof to establish, at least prima facie, the negligence imputed to the defendant through the averments of the first count; nor did they invade the jury’s province to decide whether pleaded contributory negligence, on the part of Harris, intervened to defeat a recovery under the first count; nor did they unwarrantably assume the existence of a defect in the condition of the ways, works, etc., viz. of the belt wheel, as the mean whereby Harris was injured. Given: A-conclusion attained by the jury from the evidence that the defective condition averred in count 1 existed at the time; a further conclusion, likewise attained, that this defective, condition was the means of Harris’ injury; a further conclusion, likewise attained, that the existence of this defective condition , was previously known to defendant’s representative for such a period as to allow a reasonable time before Harris’ injury in which to remedy this condition, and that the opportunity was not availed of in a way due care and precaution would suggest, and that Harris was injured in consequence of an happening attributable alone to that defective condition — it is manifest, we think, that the proximate cause of Harris’ injury must, inevitably, have been ascribed to negligence imputable to the defendant, unless, and solely unless, Harris was himself guilty of contributory negligence precluding his person'al representative from a right to recover. The physical condition in which the wheel had been for a long time previous to Harris’ injury was not a subject of real dispute in the evidence, viz. that it had been broken and had been repaired in the mode we have stated. A reasonable opportunity to remedy a defective condition in machinery necessarily comprehends a reasonable period of time in which to do so. The hypothesis upon which the court instructed the jury in respect of reasonable opportunity to remedy the defective condition expressly included reasonable time to serve the purpose of the performance of the defendant’s duty to exercise reasonable care and diligence to remedy a defective condition, to the end that it might, in case of injury therefrom, avert the consequences of actionable negligence.
(5) Excepted to parts of oral charges given to juries by trial courts must be interpreted in connection with the whole deliverance bearing upon the subject, or the phase of the case to which the excepted to part has reference.
*268There is no merit in the errors assigned. The judgment must be affirmed.
Affirmed.
Anderson, C. J., and Sayre and Gardner, JJ., concur.
