#### Berg, Appellant, vs. United States Leather Company, Respondent.

*May 2*

June *23, 1905.*

*Master and servant: Negligence: Personal injuries: Contributory negligence: Assumption of rish: Damages: Contracts of infants: Evidence.*

1. In an action by an employee for personal injuries alleged to have been caused by the dangerous condition of a sprocket chain operating machinery, the evidence, stated in the opinion, is *held*to require the submission to the jury of the questions of contributory negligence and assumption of the risk.

2. In an action for personal injuries by one who was a minor at the time of injury, it is error to rule out evidence of his indebted*263ness for physician’s services and nursing during his illness resulting from the injury, since these hills were for necessaries for which he was liable.

3. In an action for personal injuries alleged to have been caused by a defectively fastened bolt, it is error to exclude proof of the usual and customary method of fastening such a bolt under the circumstances in evidence.

Appeal from a judgment of tbe circuit court for Chippewa county: A. J. ViNje, Circuit Judge.

*Reversed.*

Eor the appellant there was a brief by *W. M. Bowe*and *~B. B.*Teeple, attorneys, and a reply brief signed *Bundy &*Wilcox, of counsel, and oral argument by *G. T. Bundy.*

Eor the respondent there was a brief by Bcmbom, *Lamo-reux &*Pray, and oral argument by *F. B. Lamoreux.*

WiNsnow, J.

This was an action by an employee to recover for personal injuries resulting from the alleged negligent maintenance by defendant of dangerous machinery in its tannery at Stanley, Wisconsin. The answer was a general denial. The plaintiff’s testimony fairly tended to show that he was twenty years of age at the time of the accident and was unacquainted with the machinery; that he was set at work, without warning, in a-dark room, shoveling coal into a long box or fuel conveyer beside which he stood; that on the side of the conveyer, and between plaintiff and the conveyer, was a rapidly moving unprotected sprocket chain, transmitting power from a shaft; that the end links of this chain were fastened together with a horizontal bolt, through the slot of which bolt a sharp nail projected more than an inch on the side of the chain next to the plaintiff, which nail he had not noticed; that as he was at work on the fourth day, cleaning up coal from the floor with his shovel, the sharp point of the projecting nail caught in his overalls as he was bending over, and his leg was drawn between the chain and the sprocket wheel, inflicting serious injuries; and that the position of the bolt could as well have been reversed, so that *264tbe nail would be on tbe inside of tbe chain, or a split key could have been used to fasten it.

Upon these facts tbe trial court held tbe plaintiff guilty of contributory negligence as matter of law and nonsuited tbe plaintiff. We regard this decision as erroneous. Doubtless tbe ordinary danger arising from tbe fact that tbe chain was not guarded or fenced, as required by sec. 1636/, Stats. 1898, was assumed by tbe plaintiff, because be was fully aware of that fact and worked without objection; but be assumed no risk which, in tbe ordinary careful use of bis senses, be could not have discovered and of which be was in fact ignorant. It was a question for tbe jury whether, in consideration of the darkness of tbe room and all tbe surrounding circumstances, be should have discovered tbe risk resulting from tbe projecting nail, and it was also a question for tbe jury whether tbe defendant was negligent in maintaining tbe chain in ‘that condition without warning to tbe employee. Tbe case is essentially similar to tbe case of *Guinard v. Knapp-Stout & Co. Co.*90 Wis. 123, 62 N. W. 625; *S. C.*95 Wis. 482, 70 N. W. 671.

Tbe plaintiff attempted to show tbe amount of bis indebtedness for physician’s services and nursing during bis illness resulting from tbe injury, but tbe evidence was ruled out. This was error. Though be was a minor at tbe time, these bills were for absolute necessaries, and be was liable to pay them. *Jones v. Valentine’s*School, 122 Wis. 318, 99 N. W. 1043. Tbe court also excluded proof of tbe usual and customary method of fastening such a bolt under the circumstances in evidence. This evidence was plainly admissible upon tbe question of defendant’s alleged negligence, on principles which are now quite familiar.

*By the Gourt.*— Judgment reversed, and actiqn remanded for a new trial.