Slike stranica

law and the decisions of other jurisdictions | due the firm, paying the debts, and making in determining the question,

distribution. Thus where it is necessary to The general rule applicable to merchandis- continue the business to realize the most ing partnerships is that in the absence of an from the assets, and the continuance is by agreement therefor in the partnership ar-authority of law and is assented to by the ticles, or a statute providing for it, the sur-legal representative, or to continue it to viving partner is not entitled to compensa- complete specific work undertaken by the tion for winding up the affairs of the part- partnership and unfinished at the time of nership. Bates on Partnership, 88 770–772; the death of one partner, and the completion Gilmore on Partnership, p. 356; 30 Cyc. p. of the work requires a large amount of 635; 22 Am. & Eng. Encyc. of Law (2d Ed.) work to be done by the survivor, principles p. 225(5); Porter v. Long (1900) 124 Mich. of equity permit an allowance for the extra 584, 83 N. W. 601, and cases there collected; service. And even when the business is conStarr v. Case (1882) 59 Iowa, 491, 13 N. w.tinued by the survivor without the consent 645; Washburn v. Goodman (1836) 17 Pick. of the personal representative and a profit is (Mass.) 519; Consaul v. Cummings (1911) 222 realized, such survivor is usually entitled to U. S. 262, 32 Sup. Ct. 83, 56 L. Ed. 192; Wil- compensation if the estate elects to share in liams v. Pedersen (1907) 47 Wash. 472, 92 | the profits. Bates on Partnership, § 773; 22 Pac. 287, 17 L. R. A. (N. S.) 385, 399, where Am. & Eng. Encyc. of Law (2d Ed.) pp. 225, the cases are fully collected in a note; Con-226; 30 Cyc. 640; Consaul v. Cummings, sudon v. Callahan (1905) 115 Tenn. 285, 89 s. pra; monographic note, 112 Am. St. Rep. W. 400, 1 L. R. A. (N. S.) 643, 112 Am. St. 843; Condon v. Callahan, 5 Ann. Cas. 659, Rep. 833, note 843, 5 Ann. Cas. 659.

note; monographic note, 17 L. R. A. (N. S.) In Consaul v. Cummings, supra, it was

396. said in the opinion of the Supreme Court of

The findings in this case do not, however, the United States written by Mr. Justice bring the appellant within any of the excepLamar: "Claims of this sort are not favored. tions to the general rule.

. tions to the general rule. He did not have They lead to efforts to prove a disparity be the consent of the personal representative of tween the partners, when the law implies the deceased partner, but, on the contrary, the equality. They necessitate a balancing of business was continued against the wishes the value of the work of each in securing of both the widow and the personal reprethe business and earning the profits, as well sentative. The authority of the court to as a comparison of the time they may spend continue the business was procured by apon the matters under consideration. Each

Each pellant by representing that it would be necpartner is bound to devote himself to the essary and beneficial, and no benefit or profit firm's business, and there is no implied ob- resulted. The facts found do not clearly ligation that for performing this duty he show appellant entitled to the credit for should be paid more than his proportionate services, and the court did not err in refusshare of the gains. Neglect by one to do his ing it. The long and unreasonable delay in part may be of such character as to justify making the final settlement, it may also be a a dissolution. But as long as the firm con- said, is not without its influence on appeltinues there is usually no deduction because lant's right to claim compensation for his

services. one partner has not been as active as the other. The same is true where death pre

The assignment of error based on the acvents either of the partners from performing tion of the court in overruling appellant's his contract. The law did not permit him motion for a new trial is waived by a failto appoint a substitute, nor can his personal

ure to present in the brief and state any

The representative, no matter how well qualified, points and authorities bearing on it. assist in winding up the affairs of the firm. assignment of error founded on the overWhether that be considered a right or duty, ruling of the motion to modify the judgment it is in either event cast on the survivor. In has been disposed of by the consideration

: performing it he only carries out an obliga- and determination of the questions arising tion implied in the partnership relation, and upon the exceptions to the conclusions of is therefore entitled to no compensation for

law. thus doing what he was bound to do and

The judgment is affirmed. what would have been imposed on the other had the order of their death been different. To allow the survivor compensation wherever

(180 Ind. 348) he continues the business would be to offer DOYLE V. RINGO. (No. 22,120.) an inducement to delay the settlement which (Supreme Court of Indiana. . June 6, 1913.) ought to be made as soon as possible.”

1. MORTGAGES ($ 605*)-REDEMPTION-ALLEThere are certain well-recognized excep- GATIONS OF COMPLAINT-TENDER. tions to the general rule where the circum- The strict rule of tender applying in acstances are extraordinary and more is done tions at law does not apply in all of its strictby the surviving partner than the mere work ness in a suit in equity, by a mortgagor against

a mortgagee in possession receiving rents and of selling the property, receiving the moneys profits who is alleged to have sold the prop


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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erty, brought to have a deed declared a mortClay county, Ind., then and now of the value gage and for an accounting and to redeem. of $8,000; that on the latter date he mort

' [Ed. Note.-For other cases, see Mortgages, gaged it to a third person to secure a note Cent. Dig. $$ 1788-1794; Dec. Dig. $ 605."]

of $1,530; that thereafter the mortgage 2. MORTGAGES (§ 616*) – ACTIONS FOR AC$

was foreclosed and the land sold and a cerCOUNTING—ALLEGATIONS OF TENDER-SUFFICIENCY.

tificate issued to the purchaser for the The complaint, in an action by a mortga- amount of the debt the $1,923.55; that prior gor against a mortgagee in possession to have to the expiration of the year for redemption, à deed declared a mortgage and for redemp- and while he was taking steps to secure the tion and an accounting, alleged that plaintiff informed defendant that he was prepared to money to redeem the real estate from the pay the debt and requested him to convey, and sale, defendant informed him that he had that the request was refused, and defendant some money that was idle, and not yielding vey. Held, that the mortgagee could not claim him any interest or income, and proposed to

, that there was not a sufficient allegation of loan plaintiff a sufficient sum of money to tender, in view of the fact that he held the le- redeem the real estate from the sale, and gal title and knew that only his conveyance give him sufficient time in which to repay would enable the mortgagor to pay the debt. [Ed. Note.-For other cases, see Mortgages, said loan, if he could, or would secure the

, Cent. Dig. $$ 1833-1844; Dec. Dig. § 616.*] payment thereof; that thereupon it was 3. MORTGAGES (8 32*)-MORTGAGE OR DEED. agreed between them that defendant should

The rule, once a mortgage always a mort- furnish the plaintiff a sufficient sum of mongage, is elementary in equity.

ey to redeem the real estate at 6 per cent. [Ed. Note. For other cases, see_Mortgages, interest to be paid in three years; that it Cent. Dig. $8 60–66, 84–94; Dec. Dig. $ 32.*)

was further agreed between them that, to 4. APPEAL AND ERROR (8 928*)–PRESUMPTIONS secure the payment of whatever amount of


money defendant should loan plaintiff to reWhere requested instructions were not sign- deem the real estate, defendant should proed by the party or his counsel as required by the cure and take an assignment of the certifiact of 1881 (Burns' Ann. St. 1908, § 558, subd. 4) and by Acts 1903, p. 338, it will be presumed cate of purchase from the purchaser, and at that such failure was the cause of the trial the expiration of the year for redemption judge's failure to indicate in a writing signed take a sheriff's deed therefor for the bene. by him what instructions would be given and re- fit of plaintiff, and hold said deed as security fused as required by statute; the reason for both statutory rules being to properly identify for the money he advanced to redeem the the instructions tendered and the action of the real estate, until the same was paid, with court with respect thereto.

6 per cent. interest per annum; that, rely[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. š$ 3749–3754; Dec. Digging on the agreement, he made no further ef. 928.*)

fort to raise money to redeem the real estate,

which otherwise he would have done; that Appeal from Circuit Court, Clay County ; in pursuance of, and in consideration of, the George M. Crane, Special Judge.

agreement so made, defendant did procure Action by Morgan H. Ringo against Mi- and take an assignment of the certificate, chael M. Doyle. From a judgment for plain- for the benefit of plaintiff, and thereafter tiff, defendant appeals. Affirmed.

on the 18th day of June, 1902, surrendered Transferred from the Appellate Court un- the certificate to the sheriff of Clay county, der Burns' Ann. St. 1908, 8 1405.

Ind., and took a deed in his own name for A. W. Knight, of Brazil, and Sullivan & the real estate, all in accordance with the Knight, of Indianapolis, for appellant. S. agreement; that defendant in so doing laid M. McGregor and McNutt & Shattuck, all of out and paid for the benefit of plaintiff the Brazil, for appellee.

sum of $2,079.44; that at the time defend

ant so furnished him the money to redeem MYERS, J. This was an action by ap- the real estate, and took the sheriff's deed as pellee against appellant by a complaint in security therefor, plaintiff was in possession two paragraphs; the first seeking to have a of the real estate and so remained until the sheriff's deed declared a mortgage and for time hereinafter stated; that before the an accounting between the parties and to be time when by the terms of the agreement permitted to redeem, and the second para- the loan became due, he sold part of the graph an ordinary complaint to quiet title. real estate and went to defendant and informThe answer was a general denial. There was ed him that he was then ready and prepared a trial by the court, with the question of to pay the sum of $2,079.44 so loaned as fact submitted to a jury, for the advisement aforesaid, with interest thereon at the rate of the court, as to whether the sheriff's of 6 per cent. per annum, and requested dedeed was taken as a mortgage, which the fendant to convey the real estate to the purjury answered in the affirmative.

chaser thereof, or to plaintiff upon the payThe first paragraph of complaint is attack- ment of said sum, whereupon defendant reed upon the ground that it alleges no tender fused to convey the real estate either to the of the amount due. The complaint alleges, purchaser or to the plaintiff, and has ever in substance, that the plaintiff was on March since refused and still refuses to accept said 16, 1899, the owner of 74 acres of land in sum so loaned plaintiff, or reconvey the real *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

ne No actual offer of the money necessary to

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estate upon payment thereof, although plain-| Grady v. Hughes, 80 Mich. 184, 44 N. W. tiff is now, and has been ever since said 1050; Ludington v. Taft, 10 Barb. (N. Y.) time, prepared, willing, and ready to pay 447; Bogardus v. Trinity Church, 4 Paige said sum, principal and interest; that at the (N. Y.) 178; Rippe v. Stogdill, 61 Wis. 38, expiration of the time when the sum became 20 N. W. 645. due and payable the defendant without the consent of plaintiff took possession of all pay the debt is alleged; but where, as here, said real estate and has ever since remained the mortgagee holds the legal title to the res, in possession thereof, taking and appropriat- knowing that only his transfer would enable ing the rents and profits thereof to his own the other party to pay, and it was his duty use, the amount of which plaintiff is unable to accept the money owing him and convey, to state, for the reason that defendant has and the other party is in his power, he will failed and refused to account to plaintiff not be heard in equity and good conscience to therefor, though often requested by plaintiff say that a technical tender was not made, so to do. Other allegations follow, showing when he himself prevented it. The comsale by appellant, after he took possession, plaint is sufficient. of part of the land for sums aggregating It is urged by appellant on the evidence $2,000, sales of coal, sale of timber in large that the facts show that the transaction amounts in value unknown to him, and was not a loan of money, and taking the which he has no means of knowing, and has certificate and deed as security, but an exreceived the rents and profits in amounts to tension of the time for redemption, and a him unknown, and converted the whole to conditional sale, and at the end of the period his own use, and refused to account for any for redemption without redemption the title part of the sums so received. Prayer for a vested in him under the rule in Turpie v. decree declaring the deed a mortgage, for Lowe, 158 Ind. 314, 62 N. E. 484, 92 Am. St. an accounting, and an offer, readiness, will. Rep. 310; Williams v. Hoffman, 39 Ind. App. ingness, and ability to pay any sum found 315, 76 N. E. 440. due, and for equitable relief.

[3] Once a mortgage, always a mortgage, It is not necessary under a complaint of is an elementary rule of equity jurisprudence. this character that a tender be alleged or There is evidence of the loan of money, and made. Calahan v. Dunker (App. 1912) 99 N. taking the certificate and deed as security E. 1021; Brown v. Follette, 155 Ind. 316, 58 for its repayment, and the court has found N. E. 197; Horn v. Indianapolis, etc., Bank, that the transaction was a mortgage, and we 125 Ind. 381, 25 N. E. 558, 9 L. R. A. 676, 21 cannot disturb the finding on the weight of Am. St. Rep. 231; Nesbit v. Hanway, 87 the evidence. There is also evidence in supInd. 400; Coombs v. Carr, 55 Ind. 303; Ætna, port of the allegations of tender and demand. etc., Ins. Co. V. Stryker, 38 Ind. App. 312, It appears by bills of exception that at the 73 N. E. 953, 76 N. E. 822, 78 N. E. 245; close of the evidence, and before the arguKemp V. Mitchell, 36 Ind. 249; Bowen v. ment was begun, appellant requested the Gerhold, 32 Ind. App. 614, 70 N. E. 546, 102 court in writing to instruct the jury in writAm. St. Rep. 257.

ing to indicate in advance of the argument [1] The rule of full and strict tender in what instructions would be given, and to actions at law cannot, in the nature of give in his behalf instructions numbered from things, apply in equity in case of unliquidat- 1 to 9, inclusive, and appellee also tendered ed accounts and mutual indebtedness, such as instructions, as did also the court of its own is here shown, under allegations showing a motion; that the court modified instructions mortgagee in possession receiving rents and Nos. 2, 3, 4, and 7, requested by appellant, by profits, and selling property, since without erasing portions and inserting other words. an accounting a party cannot know what to The instructions as requested, and also as tender, which is an indispensable requisite modified, are set out; the court giving those in liquidated accounts or in an action at law. as modified as his own. The court failed and Barr v. Vanalstine, 120 Ind. 590, 22 N. E. neglected to indicate before the argument of 965; Conyngham's Appeal, 57 Pa. 474; Green counsel commenced, and before the jury was v. Brooks, 81 Cal. 328, 22 Pac. 849.

instructed, what instructions were to be giv[2] There is a direct allegation that ap- en, and what instructions were refused, by pellee had sold part of the land and went memoranda in writing and signed by the to appellant and informed him that he was judge at the close of the instructions (our ready and prepared to pay the debt, and re- italics), and appellant objected to sucb changquested him to convey to the purchaser ores and modifications, and to the giving of the to him, and that the request was refused, instructions as thus modified, upon the ground and he has ever since refused to accept the that "such changes and modifications did not money loaned by him, or to convey. This comply with the statute." This objection was a direct demand and refusal, and, while was overruled, and exception reserved. He not an allegation of tender, a complaint is then objected "to the giving of all and each sufficient which substantially makes out a of said instructions," which objection was case. Snyder v. Baber (1881) 74 Ind. 47; overruled, and exception reserved. It does Whinery v. Brown, 36 Ind. App. 276, 279, 75 not appear by the record that any instrucN. E. 605; More v. Calkins, 85 Cal. 177, 24 tion tendered by the parties was signed by

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The motion for a new trial is not set out

(180 Ind. 301) in the briefs, or the substance of any cause JEFFERSONVILLE MFG. CO. V. HOLDEN. for a new trial; but under his eighteenth

(No. 22,389.)1 point the point is made that the failure of

(Supreme Court of Indiana. June 4, 1913.) the court to indicate what instructions would

1. STATUTES (8 47*) CERTAINTY OF PROVIbe given "erroneously deprived appellant of SIONS-GUARDING DANGEROUS MACHINERY the opportunity and power to discuss proper- "PROPER." ly to the jury the law of the case as the

The provision of Burns' Ann. St. 1908, 8 court thereafter stated it, and to apply it to not invalid for uncertainty, since, when consid

8029, relating to the guarding of machinery, is the evidence, so that a different finding fa-ered with the other sections of the factory act vorable to appellant might have resulted, and (sections 8021 et seq.), it requires such machinbeen adopted by the court,” and in his argu- engaged about dangerous machinery where it can

ery to be so safeguarded as to protect employés ment he refers to this subject as the thir- be done without impairing its usefulness, and teenth cause for a new trial. No attack is the statute requiring that it shall be a proper made on any instruction given or refused.

guard, and the term "proper" as thus used means

fit, suitable, or appropriate. [4] We have thus presented the record as

[Ed. Note.-For other cases, see Statutes, made, and, without going into the question Cent. Dig. § 47; Dec. Dig. § 47.* further, it is sufficient to point out that ap- For other definitions, see Words and Phrases, pellant grounds his claim of error on the vol. 6, pp. 5687, 5688.] statutory ground of the failure of the court 2. MASTER AND SERVANT (8 204*)- LIABILITY to indicate in writing, signed by the judge,

FOR INJURIES-ASSUMPTION OF RISK. such instructions as would be given and re- apply to the case of an injury caused by an em

The doctrine of assumption of risk does not fused. He overlooks the statutory require-ployer's negligent nonobservance of a positive ment, quite as explicit, both under the act of and fixed statutory duty. 1881 (Burns 1908, $ 558, subd. 4) and by the servant, Cent. Dig. $8 544-546; Dec. Dig. $

[Ed. Note.--For other cases, see Master and act of 1903 (Acts 1903, p. 338; Burns 1908, 8 204.*] 558), that all instructions shall be signed by 3. MASTER AND SERVANT (8258*)-ACTIONS the party or his counsel. It nowhere appears FOR INJURIES-COMPLAINT. that this was done, and we must presume

In an employé's action for injuries, a parathat, if the court failed to follow the statutograph of the complaint alleging that in the

operation of a woodworker there was danger, ry requirement, it was because appellant had that while the person operating it ran the wood not tendered instructions signed by himself over the knives it would be thrown back suddenor his counsel. The reason for the rule is the ly, and the hand of the operator thereby brought same in each case, viz., to properly identify could have been placed on the machine without

in contact with the knives, that a proper guard the instruction tendered and the action of interfering with its proper operation, that such the court respecting it. It does not appear guard would have protected the knives and prethat appellant put himself in a situation to vented injury from such danger, that the em

ployer, in violation of the statute, negligently have required the court to indicate his deter- failed to provide such guard, that while plaintiff mination in writing, in addition to the fact was operating the machine and holding a piece that upon the whole record it is fairly open knives the

wood was suddenly thrown back by

of wood on its table and running it over the to the inference that the court's purpose as to the operation of the machine, causing plaintiff's giving and refusing instructions was known hand to come in contact with the knives and be to the parties in advance of the argument, injured, that if such guard had been placed on

the machine his hand would not have come in at least it does not appear that it was not.

contact with the knives, and that the injury Muncie, etc., Co. v. Black, 173 Ind. 142, 89 N. was caused by the employer's negligence in failE. 845; Starr v. State, 160 Ind. 661, 67 N. E. ing to provide such guard, and another para527; Collett v. State, 156 Ind. 64, 59 N. E. graph containing similar allegations and alleg.

employer 168.

machine with a guard consisting of a board atIt is urged that the amount awarded ap- tached to the table and placed in such position pellant is too small; but we cannot weigh the through which the knives protruded, but that to

that it would cover the aperture in the table evidence, which is principally in parol. Up- make the guard a proper one and one that on appellant's insistence we have examined would safely guard the knives and prevent inthe evidence with care, and there is evidence jury it should have been provided with a spring

to hold the guard against the material run over ample to support the findings.

the table for the purpose of being sawed and to It is also urged that the court erred in en- completely cover the aperture the instant the tering a judgment for foreclosure of the such a spring would have guarded the knives

material was removed, and that a guard with mortgage, when he had not asked such relief. and prevented an injury, alleged sufficient facts The judgment also is that, upon payment of to show that the failure to guard the machine the amount found due, he should convey to properly was the proximate cause of the

injury. appellee, or in default a commissioner ap- Servant, Cent. Dig. 88 816-836; Dec. Dig. $

[Ed. Note.-For other cases, see Master and pointed should do so. Conceding, without de- 258.*] ciding, that the portion of the judgment de 4. PLEADING ($$ 18, 19, 21*)-AMBIGUITYcreeing a foreclosure was erroneous, there

CERTAINTY-REPUGNANCY. was no motion to modify it, and there is

Such second paragraph was not defective

as being ambiguous, uncertain, or repugnant. nothing for this court to act upon.

[Ed. Note. For other cases, see Pleading, Cent. The judgment is affirmed.

Dig. 88 39, 40, 44, 64; Dec. Dig. $$ 18, 19, 21.*]

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

· Rehearing denied.


FOR INJURIES/GUARDING DANGEROUS MAA general verdict will not be defeated by

CHINERY. isolated facts disclosed by answers to inter- Under Burns' Ann. St. 1908, $ 8029, requirrogatories, unless they are so repugnant to the ing saws, planers, and machinery of every degeneral verdict that both cannot be true under scription in manufacturing establishments to be any conceivable state of facts.

properly guarded, the approval and indorsement [Ed. Note. For other cases, see Trial, Cent. of a considerable proportion of the careful, pruDig. SS 857-860, 875, 877, 878; Dec. Dig. 8 359.*] dent, skillful, considerate, and experienced per6. TRIAL (8 359*)-SPECIAL FINDINGS INCON-sary to render a particular guard proper or to

sons in a particular line of business is not necesSISTENT WITH GENERAL VERDICT.

render an employer's failure to use it negligence. In determining whether judgment should be

[Ed. Note. For other cases, see Master and granted on special findings notwithstanding the general verdict, the court cannot look to the Servant, Cent. Dig. $$ 228-231; Dec. Dig. 8

121.*] evidence, but only to the pleadings, general verdict, and special findings.

13. TRIAL ( 242*)-INSTRUCTIONS-CONFUSING [Ed. Note. For other cases, see Trial, Cent.

AND MISLEADING INSTRUCTIONS. Dig. $$ 857–860, 875, 877, 878; 'Dec. Dig. $ 359.*1 bose, and tedious as to make it wearisome and


An instruction which was so prolix, ver7. APPEAL AND ERROR (8 1001*)-QUESTIONS confusing was properly refused. OF FACT-VERDICT-CONCLUSIVENESS. It is not the province of the Supreme Court Dig. $$ 569-576; Dec. Dig. § 242.*]

[Ed. Note.-For other cases, see Trial, Cent. to weigh the evidence; and, when there is any legal evidence tending to support a verdict, the 14. APPEAL AND ERROR ($ 1004*)-REVIEWjury's finding is conclusive.

AMOUNT OF RECOVERY. [Ed. Note. For other cases, see Appeal and The amount of damages to be awarded for Error, Cent. Dig. 88 3922, 3928-3934; Dec. Dig. personal injuries is a matter for the determina8 1001.*]

tion of the jury under the supervision of the

trial court; and, unless the record discloses 8. TRIAL (8296*)-INSTRUCTIONS—CURE BY that the amount is so grossly excessive as to OTHER INSTRUCTIONS.

make it so appear at first blush, the Supreme Instruction as to employer's duty to guard Court will require that it be pointed out wheredangerous machinery that he could escape liabil in the record so discloses to such extent as to ity only by complying therewith, and that the induce the belief that the jury was actuated by use of an imperfect and insufficient guard by prejudice, partiality, or corruption. other manufacturers did not justify his violation, held not erroneous, where it did not purport to Error, Cent. Dig. $8 3944–3947; Dec. Dig. 8

[Ed. Note. For other cases, see Appeal and cover all the facts necessary to a recovery, and

1004.*] the subject of contributory negligence was fully and completely covered in other instructions.

Appeal from Circuit Court, Floyd County ; [Ed. Note. For other cases, see Trial, Çent: William C. Utz, Judge. Dig. 88 705-713, 715, 716, 718; Dec. Dig. 8 296.*]

Action by Thomas A. Holden against the

Jeffersonville Manufacturing Company. 9. MASTER AND SERVANT ($ 296*)-ACTIONS | Judgment for plaintiff, and defendant apFOR INJURIES—INSTRUCTIONS.

peals. Affirmed. An instruction that an employé was not necessarily guilty of contributory negligence by con- Instructions 15, 16, and 18, given as tentinuing work, knowing that a machine was not dered by plaintiff, were as follows: properly guarded, and that if the employer was "No. 15. The defendant claims that at the negligent the employé might recover notwith-time in question there was a guide or fence standing such knowledge was proper.

[Ed. Note. For other cases, see Master and on said machine which could be so placed by Servant, Cent. Dig. $8 1180-1194; Dec. Dig. & the operator of said machine as to act as a 296.*]

guard to the knives thereof. Now, as to such

guide or fence, I instruct you that, if the de10. MASTER AND SERVANT (8291*)-ACTIONS fendant furnished some other device on said FOR INJURIES-INSTRUCTIONS.

machine to be used by its employés operating In an employé's action for negligent failure the same as a guard for said knives, then jury's attention to defendant's claim that there such employés would have the right to use was a device which might be used as a guard, the device furnished by the defendant for to another device furnished as a guard, to the such purpose, and the defendant if it did furmanner of the use of either and whether either nish some other device as a guard would be was a proper guard, to the employé's conduct in required to furnish one that was sufficient the use of the machine, and to defendant's duty for such purpose if it could be furnished to furnish a proper guard was proper.

without interfering with the proper opera[Ed. Note.-For other cases, see Master and tion of said machine." Servant, Cent. Dig. $$ 1133, 1134, 1136–1146;

“No. 16. The defendant claims that at the Dec. Dig. $ 291.*]

time in question there was a guide or fence 11. MASTER AND SERVANT (8 121*)-ACTIONS on said machine which could be placed by the FOR INJURIES-INSTRUCTIONS.

operator of said machine as to act as a guard In an employé's action for injuries alleged to the knives thereof. Now, as to such guide to have been due to the employer's negligence in or fence, I instruct you that if the defendant failing to properly guard dangerous machinery, did not use or furnish the same as a guard, an instruction that what was a proper guard or if it did not require its employés operatmight be determined by finding if the guard on ing said machine to use it as a guard, but the machine was similar to those in use by others, and, if so, that the use of such a guard furnished another device to be used as a would be ordinary care, was properly refused. guard, such employés would have the right

[Ed. Note. For other cases, see Master and to use such device furnished for a guard if Servant, Cent. Dig. 88 228-231; Dec. Dig. Sit was furnished, and under such circum121.*)

stances the defendant would not be heard to

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