аfter making the foregoing statement, delivered the opinion of. the court.
A motion was" filed in this case to dismiss the writ of error on the ground that the general term of the court below never acquired jurisdiction-of the case, and that, as a consequence thereof, this court is also without jurisdiction. In-connection with, the motion to dismiss there was also a motion to strike out the bill of exceptions. •
The argument urged by the plaintiff in support of both motions is, that the rules and statutes prescribing the practice *568 and proceedings for the Supreme Court of the District of Columbia, in securing the review, in a general term of that court, of a judgment at a special term, have not been conmlied with in this case.
Neither of these motions can be sustained. We think the court in general term acquired jurisdiction of the case ; and as it comes here regularly from that court we shall proceed to consider it upon its merits.
There are seven assignments of error which we will consider, not seriatim, but with reference to their relevancy to the issues presented by.the record. These issues are, (1) Was the machinery with which the defendant worked defective and unsafe for the purpose for which it was' used, and more particularly, was the putting the belt on the large pulley by hand.dangerous ? or should there have been a loose pulley upon which the* belt could have been safely shifted by means of a lever ? (2) Assuming that there was this defect in the machinery which made it dangerous, was the plaintiff ignorant of the defect or of the danger connected with it? (3) Did the defendant, in failing to notify the plaintiff of the danger, have reason to believe the plaintiff was ignorant either of the nature of the machinery, or of the danger incident to its use ? (4) Was the plaintiff guilty of such contributory negligence as precluded a recovery ?
The three instructions given by the court to the jury as requested by the counsel for the defendant were to the effect, that, if the jury believed from the evidence that any one of the three following conditions or state of facts existed, the plaintiff could not recover: (1) That the accident would not have occurred but for the negligence or want of ordinary care and caution on the part of the plaintiff ; (2) That if the foreman of the shops, on the Saturday evening preceding the accident, ordered and directed the plaintiff to take the belt off the pulléy, and to send on Monday morning for Moore to put it on, he was bound to obey the order directing him to send for Moore, and his not .obeying it was such negligence as would prevent a recovery in this action ; and (3) Assuming that putting on' the belt was attended with danger, the question to be *569 determined by the jury was not whether the plaintiff knew of such danger, but whether a man of ordinary care and observation, in his situation, would have known it, as he must be prеsumed to possess that degree of intelligence; and that if with such observation .and care he would have known the danger, then in putting on the belt he assumed all the risks incident thereto.
The instruction given by the court on its own motion was as follows': “If the jury find from, the evidence that after he was employed by the defendant the plaintiff voluntarily, and without being required so to do, attended to the belt and habitually and with the knowledge of the defendant’s officers placed the same in position without accident, and his course of conduct in relation thereto was such as' to induce the defendant or its officers to believe that he had the requisite skill for that purpose, or that he had willingly assumed the duty of so placing the belt, the defendant was not in default for not having instructed him as to any danger incident to the operation.”
Another instruction given by the court in lieu of the 16th one requested by the defendant was as follows: “ But the jury are instructed that the defendant was not a guarantor of the safety of its machinery, and was onty bound to use ordinary care and prudence in the selection and arrangement and care thereof, and had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe.” ■
The other instructions given by the court were modifications to a degree of those asked by the defendant, and were mere amplifications of those above mentioned.
"We do not think there was any error in any of these instructions of which the defendant had any right to complain. The propositions contained in them are in strict accord with the principles laid down by the decisions of this court.
Hough
v.
Railway Co.,
*570 The general principles of law by which the liability of an employer for injuries to an emplоyé, growing out iff defective machinery, is tested are well settled by those decisions. Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employés. Nor are they bound to supply, the best and safest' or newest of those appliances for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service,' by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or mastеr fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which 'was, or ought to have been, known tó him, and was unknown to the employé or servant. But if the employé knew of the defect in the machinery from which the injury happened, and yet remained in the service' and continued to use the maсhinery without ’ giving any notice thereof to the employer, he'must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and ' is entitled to no recovery. And further, if the employé himself has been wanting in such reasonable care and prudence as would have prevented the happening of the аccident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for the injury, although it was occasioned by the defect of the machinery, through the negligence of the employer.
The state decisions in harmony with the principles laid down by this court on this subject are too numerous for citation.
We will, now briefly notice-the assignments of error, the first of which is that thd court erred in refusing to direct the 'jury to return a verdict 'for the defendant, as requested by counsel.
. It is argued, in support of this assignment, that there was not a scintilla of evidence to show, negligence on the part of the defendant, as the employer of the plaintiff ; that the part *571 of the machinery which caused the accident was not defective; that the evidence showed it to be of the • most approved character, purchased without regard to cost, and such as was generally in use throughout the country; that loose pulleys and a shifter or lever for shifting the belt were not used in blacksmith shops ; that the plaintiff had been in the shop for nearly eighteen months, and liad become familiar by constant use with the operation of putting the belt on the pulley, and it was impossible for him not to know what danger attended its use; that the company had employed a man, competent and skilful, whose duty it was to put on all the belts in the establishment ; that it was not in the line of the duty of the plain- • tiff to put on this belt, and whenever he did so he was acting outside the scope of his employment; and, lastly, that the manner in which the accident occurred, as described by the plaintiff himself, in failing to wait until 'Kline had slowed up the engine, shows that he was, by his own heedlessness and rash want of care, the author of his own misfortune. .On the other hand, the evidence offered by the рlaintiff certainly-tended to show that the injury would not have occurred but for the defect of the fixed pulley and the projecting screw; that the machinery was unsafe, and not such as was generally used in shops of that kind, as testified to by experienced machinists introduced by the plaintiff, and the only one examined in behalf of the defendant; that he (the рlaintiff) was unaware of the dangers attendant upon putting on the belt by hand; that he did not know that the belt in which he was caught had been recently, and, perhaps, imperfectly repaired ; that there were in the other shops of the establishment shifters and levers which could put the belt on the pulley without danger; that he was wholly unaware of the danger attendant upon putting on the belt by hand; and that he supposed he was in the line of his duty when the injury happened. ^
If this evidence was worthy of belief it certainly could not be said to show, such contributory negligence as -would justify the court in directing a verdict for the defendant below. As a general rule, the question of contributory negligence is one for the jury, under рroper instructions by the court, especially
*572
Where the facts are in dispute, and the evidence in relation to them is that fróm which fair-minded men may draw different, inferences.
Railroad Company
v.
Stout,
There are two recent cases in Massachusetts which' are so analogous, in many of their features, to the case tinder consideration, that we deem a special reference to them proper.
Daley
v.
American Printing Co.,
Myers
v.
Hudson Iron Co.,
In the course of the opinion the court said: “ The risk of the safety of machinery is not assumed by an employé, unless he knows the danger, or unless it is so obvious that he will be presumed to know it.” And in another part of the opinion it'
*574
was said: “ The plaintiffs were allowed to show that other machinery or appliances. than those used by the defendant would have been safer; for example, a strap-brake, a friction . Y, so-called, or a reversible engine. In оrder to aid the jury in determining whether the defendant had exercised reasonable care in providing and maintaining the machinery actually in use, it was competent to show Avhat other kinds of machinery or appliances were used elsewhere, and might have been used at shaft No. 1.
Wheeler
v.
Wason Manuf. Co.,
As regards the instruction given by the court, on its own motion, above quotеd, we think nothing contained therein is prejudicial to the defendant. Indeed it may be doubted if it did not favor the defendant more than the evidence in the case and the law applicable thereto would warrant.
The same remark is true of the instruction given by the court in lieu of the 16th one asked -by the defendant. That instruction as requested was as follows: “ The employer is bound to use ordinary care and prudence in providing proper machinery, but he is not a guarantor of its safety. If he uses ordinary care and prudence he is absolved from responsibility. The machinery need not be the safest of the kind, provided it is such as a person of reasonable care and prudence would prоvide.” The one given by the court in lieu thereof was as follows: “But the jury are instructed that the defendant was not a guarantor of the safety of its machinery, and was only bound to use ordinary care and prudence in the selection and arrangement and care thereof, and had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe.” The instruction here given is in a large part identical with the language used by this court in Hough v. Railway Co., supra. The assignment of error is inexact in its statement that the court said in effect “ that the *575 defendant was bound to use and employ such machinery only ‘as the experience of trade and manufacture sanctioned as reasonable and safe.’ ” What the court said wаs, that the defendant “ was only bound to use ordinary care and prudence in the selection and arrangement and care ” of .its machinery. In adding that the defendant had the right to use such machinery “ as the experience of trade and-manufacture sanctioned,” the court ipaposed no additional obligation upon it, but relaxed the rigor of thе rule in its favor. If there was any error in such relaxation the defendant could not complain of it. But taken in connection with the other instructions given by the court, on-that question, we think the instruction as it stands was just and reasonable — at least not prejudicial to the. defendant.
We repeat, we are of the opinion that all of the instructions sufficiently guаrded the interests of the defendant, and that, in the language of the'court below, “ If there was any error, it was in too great an indulgence and relaxation of the law in its •favor.” ■.
Nor do W3 see any .error in the refusal of the court to grant all the instructions prayed for by the defendant. Such of them as were correct, as mere" abstract propositions, had already been covered by theunstructions which the court had given. The others, had they been granted, would, as conclu- - sions of law, have bound the jury to render a verdict for the. defendant.
Bor the foregoing reasons the judgment of the court below is
Affirmed.