This is a suit for damages on account of personal injuries received through the alleged negligence • of defendant. ■ Plaintiff recovered and defendant prosecutes the appeal.
It appears plaintiff, a minor about eighteen years of age, was in the employ of defendant at the time of his injury. Defendant is engaged in the manufacture of tools, such as hatchets, axes, etc. Plaintiff received his injury while dressing an emery wheel in defendant’s factory. The dresser which plain
Plaintiff says that, though he had worked at the factory for several months, he had been engaged only two and a half hours on the emery wheel when he was injured, and was not familiar with the particular wheel. The averment of the petition is to the effect that defendant was negligent and remiss in its duty in providing and setting plaintiff to work upon an emery wheel which was not set true and wobbled and ran unevenly. The evidence tends to support the charge that the wheel was not set true, for the witnesses say it wobbled as it revolved and ran more or less unevenly; morever that, because of this and the uneven surface — that is, the bump on the wheel— plaintiff was injured. However, there is no direct evidence tending to prove why the wheel wobbled or how much it wobbled, and it does not appear, except by inference, that it could have been rendered more secure by the exercise of care. The evidence with
Plaintiff requested and the court gave but one instruction for him on the principal issue of liabilit}1' in the ease. The instruction' referred to is as follows :
1 ‘ The court instructs the jury that if they believe from the evidence plaintiff lost three of his fingers from his left hand without any negligence or carelessness on his part while in the employ of defendant, by reason of the carelessness or negligence of defendant in requiring him to work on an emery wheel that was not set true and evenly, and wobbled, they will find for the plaintiff.”
It is insisted this instruction is erroneous, in that it assumes defendant was negligent in .requiring plaintiff to work on an emery wheel which wobbled, without calling for a finding of facts with respect to that matter, and we believe the argument to be sound, especially in view of the evidence for defendant that the wheel set true and did not wobble. The instruction seems to assume defendant negligent if the emery wheel was not set exactly true and wobbled to even a slight degree. Obviously such is not the law, for even though the wheel did wobble and was not set true and evenly in every respect, yet, if defendant exercised ordinary care to prevent it from wobbling and exercised ordinary care to set it true and evenly, it discharged its full duty in the matter. Defendant is not an insurer and is held to ordinary care only. The instruction assumes that, if the wheel wobbled, defendant was negligent with respect to its duty in the premises, whereas the issue touching this matter was for the jury to find from the facts. Instructions which thus assume the very issuable facts of negligence to be true are universally condemned, as will appear by reference to the following authorities in point: Ganey v. Kansas City,
Because of the error above referred to, the judgment should be reversed and the cause remanded. It is so ordered.