#### Frank Shebeck, Administrator of the Estate of William Shebeck, Deceased, Appellant, v. The National Cracker Company, Appellee.

1 .(Master and Servant: assumption of risk: burden of proof: instruction. ' In an action for injuries resulting in' the death of a servant, owing to 'alleged defective machinery and negligence of the master to keep it in repair, where the answer alleges that the defective condition of the machinery was known to deceased and that he remained in defendant’s employ without objection, the issue of assumption of risk is tendered with the burden upon. the defendant, and a general 'instruction that under the issues the'burden is on the plaintiff is erroneous.

2 Liability of Master: instruction: In an action for damages for the death of an employe engaged in operating machinery, an instruction that 1 ‘ if you find from the evidence that the nut at the end of the shaft in question was in the habit of coming off, or that it was off for hours at a time, or that by reason of such defect the wheel came out, the defendant was guilty of negligence” is misleading and states the rule of the master’s liability in the case too narrowly.

3 Assumption of Risk: age and experience: instruction. On an issue of the assumption of risk, age and experience of the servant should be considered'in determining whether he knew or ought to have known and appreciated the danger, and failure to instruct upon this branch of the case was error.

4 Stating Issues. The court should so far as possible state the issues in an abbreviated form rather than by substantially setting out the. pleadings, as there is less liability to confusion.

5 ’Practice: objection to the record: motion to strike. Objections to the record or the manner in which it has been preserved must be specifically pointed out or the objection is waived, and a motion to strike will not lie.

*Appeal from, Cedar Rapids Superior Cov,rt.*— Hon. T. M. Gilberson, Judge.

Saturday, May 16, 1903.

*415Action at law to recover damages for personal injuries occasioned by defendant’s negligence. Verdict and judgment for defendant, and plaintiff *appeals.*

Reversed.

Rielcel, *Crocker <& Touriellot*for appellant.

*Jamison & Smyth*for appellee.

WeaveR, J.

It is alleged that William Shebeck, an inexperienced boy of eighteen years, was employed by defendant in its cracker factory, and set to work feeding dough through the rollers of a machine there in' use; and while thus employed he was, without fault on his own part, caught in the gearing of said machine, receiving injuries from which death ensued. The defendant is charged with negligence in failing to instruct and warn the deceased ■concerning the dangers attending the use of said machines; in failing to properly box or otherwise guard the wheels ;and gearing, which were operated at very great speed and were out of repair, thus increasing the danger to those working near them; and in neglecting to provide a safe place for said employe to work. Damages are asked for ihe loss to the estate of the deceased; also for the loss of his services to his father, who has assigned his claim therefor to the plaintiff. The defendant denies the petition; ■says the dangers of the employment, if any, and the defects, if any, in the machinery, were open and visible, And the risk thereof was assumed by the deceased. There was evidence tending to show that deceased was young and inexperienced; that to perform the work to which he was assigned he was required to stand between two uncovered wheels revolving at considerable speed; that the machinery was worn and out of repair, by reason of which a nut and pin holding one of the wheels upon its shaft would become loose, and the pin would protrude from the end of, the shaft; that when in this condition the.clothing of the *416attendant was liable to be caught and wound - upon the shaft; that such was the condition of the machine at the time of the accident,and .such the manner in which said employe received his injuries. It is also shown, or the jury would have been justified in finding, that this defective condition of the machinery had existed, to the knowledge of the defendant, for a long time prior to the employment of deceased. It was-no part of the young man’s duty to manage or repair the machinery, such service being performed by an engineer employed for that purpose. It also appears that the gearing of the machine was adjustable to different rates of speed for different grades of work, and that on the day of the accident a change had been made by which the motion was accelerated. The errors assigned are based largely upon the charge of the court to the jury, and upon the refusal to give instructions asked by the plaintiff.

I. By the second paragraph of the charge the jury were told that the burden of proof under the issues was upon plaintiff, and by the fifth paragraph they were further i assumption de^of proof; instructions. told that if the deceased, while employed by defendant, knew the defective condition of or coui¿ have known it by the exercise of ordinary care, and continued to work there without protest or promise of the defendant to make repairs, then there could be no recovery of damages. These instructions are erroneous. True, the burden was upon plaintiff to establish the alleged negligence of defendant, the consequent injury of the deceased, and his freedom from contributory negligence, but the pleadings, as we have seen, presented another issue. The answer alleged that the defective condition of the machinery was well known to the deceased, and that, knowing it, he remained in defendant’s service without protest. In other words, the answer tenders a plea of assumption of risk, and upon this issue the jury should have been told the burden was *417on defendant. *Nicholaus v. R. R.,*90 Iowa, *85; Thompson v. Railroad Co.,*70 Minn. 219 (72 N. W. Rep. 962); *Nadau v. White R. L. Co.,*76 Wis. 120 (43 N. W. Rep. 1135, 20 Am. St. Rep. 29). The' effect of the court’s charge was to reverse this rule, and cast the burden upon the plaintiff, and we cannot say the error was without prejudice.

II. The fourth paragraph of the charge is in the following words: “You are instructed that if you find from the evidence that the nut on the end of the shaft in.quéstion 2. niAraxiTy of structión. was in the habit of coming off, or that it was off for hours at a time, or that by reason of such defect the wheel came out, thé defendant was guilty of negligence. ” The same language is, in substance, repeated in another paragraph. We think the jury would have been justified in drawing the conclusion from this instruction that defendant could not be held chargeable with negligence unless it w as first found that the “wheel was in the habit of coming off, or that it was off for hours at a time.” It is very probable the court did not mean to be so understood, but the language employed is fairly capable of such construction, and had a clear tendency to mislead the jury. Certainly, the negligence of defendant is not to be made dependent upon the fact that the nut worked loose so often that the condition may be called “habitual,” or upon its being allowed to continue in that condition for “hours.” It was defendant’s duty not only to provide its employes a reasonably safe place to work, but to use reasonable care and prudence in providing machinery and appliances safe and suitable for his use. This duty involves not only the furnishing of safe machinery, but watchfulness to keep it in safe repair. *Brann v. R. R.,*53 Iowa, 595; *Knapp v. R. R.,*71 Iowa, 41; *Rogers v. Ludlow,*144 Mass. 198 (11 N. E. Rep. 77, 59 Am. Rep. 68); *Ford v. R. R ,*110 Mass. 240 (14 Am. Rep. 598). See, *418also, Wharton’s Negligence, sections 212, 282. In other words, the master is to be held responsible not alone for defects of which he has actual knowledge, but for those, as well, which the exercise of reasonable care and diligence on his part would have brought to his notice. This Is to be considered, of course, in connection with the other rule, which holds the employe to assume the risk of all dangers which naturally or ordinarily pertain to the employment upon which he enters, as well as those dangers which are open and obvious to his senses as a person of ordinary intelligence and care. He is not required to inspect or search for obscure dangers or defects in his place of work, or in the machinery or appliances furnished him. He may rely upon the master having performed the duties which attach to that relation, save only as to such matters as áre open to his observation, or such as, in the ordinary discharge of his employment, we may fairly say ought to Shave come to his knowledge. We hold, therefore, that the fourth paragraph of the charge states the rule of the master’s liability in this case much too narrowly, and should not have been given.

TTT- The court’s charge, as a whole, is open to the objection made that it wholly ignores one very material feature of the plaintiff’s claim. It is charged, and the a. assumption andlx'pef-2 ience: instruction. evidence tends to show, that the deceased was about eighteen years of age; that he entered defendant’s employment only a few days before his injury, having no experience in that kind of work. There is nothing tending to show whether he did or did not receive any instructions or warnings as to the dangers ■of his position, and it was proper, therefore, not to submit to the jury the allegation of negligence based on defendant's failure in this respect; but the fact of the youth and inexperience of the deceased remained an important ele-'•-tnent for the consideration of the jury, and especially with reference to the question of contributory negligence and *419assumption of risk. The degree of care he was bound to exercise to absolve himself from contributory negligence is such care as might reasonably be expected from one of his age and experience under like circumstances and surroundings. So, also, even though he knew the machine to be defective, yet, in order to impute to him either contributory negligence or assumption of risk, the jury must further find that he knew, or as a reasonably prudent person under the same circumstances he ought to have known, that such defect was a source of danger. *Stomme v. Produce Co*., 108 Iowa, 140; *Sullivan v. R. R. Co.,*107 Mo. 66 (17 S. W. Rep. 748, 28 Am. St. Rep. 888); *Wuotilla v. Duluth,*37 Minn. 153 (33 N. W. Rep. 551, 5 Am. St. Rep. 832); 20 A. *&*E. Ency. Law (2d Ed.) 122. It is obvious, therefore, that the age and experience of the person are not to be overlooked in determining whether he knew or ought to have'known and appreciated the peril, and these are material inquiries in comilering the issue of assumption of risk. *Jones v. Florence M. Co.,*66 Wis. 268 (28 N. W. Rep. 207, 57 Am. Rep. 269); *Dowling v. Allen,*74 Mo. 13 (41 Am. Rep. 298); *Parkhurst v. Johnson,*50 Mich. 70 (15 N. W. Rep. 107, 45 Am. Rep. 28). The appellant asked the court to instruct the jury upon the law in this respect, and in failing so to do there was error. ' ' '

IV. The court, instead of stating the issues to the jury in abbreviated form, set out substantially-the entire petition and answer. We realize the difficulty which trial 4- stating issues. courts often find in endeavoring to condense the issues jn£0 a brief statement without-giving ground for complaint that some essential proposition has been omitted. But danger of confusing the jury by a too extended and literal recitation of all the matters with which counsel frequently burden their pleadings is to be discouraged and avoided, and we think the issues here could have been rendered much clearer by abbreviation of the statement; *Swanson v. Allen,*108 Iowa, 419; *Robin**420*son v.*Berkey, 100 Iowa, 136. We should not be inclined to reverse upon this ground alone in the present case, but call attention to the rule in order that the objection may be obviated on a retrial. Other errors are assigned, but the questions involved are not likely to arise upon another trial, and we will not take the time to discuss them.

V. Appellee has moved to strike from appellant’s abstract so much thereof as purports to set out the evi-5. practice: theere°órd° motion to strike. dence in the case, and to dismiss the appeal because it is not shown that such evidence , was preserved and made ox record by a bill of exceptions. The motion cannot prevail.

Appellee, by way of preface to its argument, filed an additional or amended abstract of the evidence, and while therein complaining that appellants abstract was not a full and fair statement of the record, no where denies, or puts in issue the preservation of the record by a proper bill of exceptions. Under the repeated holdings of this court,, we are bound under such circumstances to treat the abstract and amendment as containing all the evidence which the parties deem material to the questions raised by the appeal. General denials will not avail. They must point out especially the alleged defect. Supreme Court rule 22. If any questions are to be argued as to the sufficiency of the steps by which the record has been preserved, the issue-must be raised by specific denial; otherwise, the objection is waived, and a motion to strike will not lie. *Kirchman v. Coal Co.,*112 Iowa, 668; *MoGillivary v. Case,*107 Iowa, 17; *Palmer v.*Clark, 114 Iowa, 558; Code, 1897, section 4118. Appellee, thpugh having the opportunity in its-amended abstract, tendered no such issue, and, under the-well-settled rule of practice in this court, we cannot now consider it, and the motion is denied.

For the reasons hereinbefore stated, the judgment appealed from is REVERSED.