#### Shepherd, Respondent, vs. Morton-Edgar Lumber Company, Appellant.

*October 22*

November *11, 1902.*

*Master and servant: Personal injury: Defective machinery: Pleading: Cause and effect: Assumption of risk: Contributory negligence.*

In an action for injuries sustained by plaintiff while working in defendant's mill at a planing machine having one set of knives, above, and one set below, the table, the complaint alleges that plaintiff, being wholly unfamiliar with the machine, was set to work thereon; that the lower knives were entirely out of sight and about eleven inches from the rear end of the table and, being left unguarded through defendant’s negligence, constituted a hidden danger of which plaintiff had no notice; that plaintiff necessarily went to the rear of the machine to pull boards through it and, while he was so engaged, without fault or negligence on his part his foot was caught and injured by said lower knives; and that by reason of defendant’s said negligence and of his injuries plaintiff suffered a severe shock and permanent injury. *Held,*on demurrer:

(1) It is sufficiently alleged that the injury was caused by defendant’s negligence.

(2) It does not appear that the danger was apparent so that plaintiff must be deemed to have assumed the risk; nor that he was necessarily guilty of contributory negligence.

Appeal from an order of tbe circuit court for Lincoln county: W. C. Silverthorh, Circuit Judge.

*Affirmed.*

Appeal from order overruling general demurrer to tbe complaint in an action to recover damages for personal injury, substantially alleging that defendant owns and operates a mill for tbe planing of lumber, containing, among’ other things, a double planing machine, with one set of planing knives above, and tbe other below, tbe table; that plaintiff, being wholly unfamiliar with tbe machine, was set to work thereon; that tbe lower knives, revolving on an axis below tbe plane table, were entirely out of sight, and about eleven inches in from tbe rear end of tbe machine; that de*523fendant’s duty was to keep said knives under tbe table covered from contact therewith, but that such duty was' wholly omitted;- that said knives constituted a hidden and unseen danger, of the uncovered condition of which plaintiff had no-warning or notice, and which he could not see or observe prior to the time of the injury. It is also alleged that there-was some want of repair in that part of the apparatus which caused the boards to move along on the plane table and through the planing knives, whereby it frequently became-necessary for an employee to go to the rear of the machine and pull boards through. This condition is also alleged to-be negligence. That on the 2lth of August, plaintiff, by command of his superior, was doing this kind of work, and “without any fault or negligence on his part, and without any warning from the defendant or [its foreman], the foot of plaintiff became caught by the knives of said lower head,*’’ whereby injury was done him. Further, it is alleged- “that by reason of the said negligence and carelessness of the defendant as aforesaid, and said failure of defendant to warn plaintiff as aforesaid, and of said injuries as aforesaid, the plaintiff suffered a severe shock and permanent injury,” etc..

*T. L.*Oleary, for the appellant.

For the respondent there was a brief by *James O’Leary,*attorney, and *Van Heche x&*Smart, of counsel, and oral argument by *Mr. O’Leary.*

Dodge, J.

The demurrer is supported by two contentions r first, that the complaint fails to allege that plaintiff’s injury was caused by defendant’s negligence; second, that it affirmatively discloses contributory negligence on plaintiff’s-part. -

We cannot but regard the first of these positions as hypercritical, — too much so to satisfy the rule of liberal construction commanded by sec. 2668, Stats. 1898. There is the-express allegation that, by reason of the negligence and of his-*524injuries, plaintiff suffered shock and permanent injury; and, while this may be open to the construction that it only alleges the sequence of the shock and permanent injury from the accident, it is at least equally capable of meaning that plaintiff’s injuries resulted from defendant’s negligence. Further, however, it is alleged that the negligence consisted in leaving unguarded certain revolving knives, and that plaintiff’s injuries were caused by his co’ntact with such knives, which obviously could not have happened in the absence of such neglect. We are satisfied that the complaint sufficiently informed defendant that plaintiff asserted causal relation between the negligence described and the injury suffered.

The second contention is apparently twofold, involving both the claim that enough appears to show that the peril was apparent, and therefore assumed by plaintiff; also that the •contact of defendant’s foot with the knives was due to negli.gence on his part. Contributory negligence is a defense, and need not be negatived by the complaint. *Randall v. N. W. Tel. Co.*54 Wis. 140, 147, 11 N. W. 419. Nevertheless, if there be alleged facts from which it is not reasonably possible to draw any inference other than contributory negligence, the complaint itself makes apparent that no cause of action •exists, and a demurrer should be sustained. *Hazen v. West Superior L. Co.*91 Wis. 208, 64 N. W. 857. Upon turning to the complaint, we find the fullest negation of obviousness of the defect and danger from which plaintiff suffered, as also of any knowledge of it on his part. It is alleged to have been hidden and concealed, and such that plaintiff could not see it. At this point appellant urges our attention to *Hazen v. West Superior L.*Co., as supporting a conclusion, even on demurrer, that such allegations must yield to obvious fact, and that, notwithstanding them, the court must hold that the plaintiff could, and by exercise of reasonable care ■ought to, have observed the danger. In that case the danger ■and injury resulted from unguarded portions of revolving *525saws *above*the table, on which plaintiff was required to place certain lumber, and to push same against the very portion of the saws complained of, and the court held that denial of knowledge of the danger from such saws ivas an absurdity. The distinction from the present situation is obvious. Here' the unguarded portion of the knives from which plaintiff suffered were out of his sight, and below the table. Even if the ordinary laboring man must be charged with so1 much of' ratiocination as to infer that, when he sees points of revolving knives above a table, there must be portions of those-knives revolving below it, it does not follow that he must infer that they are negligently left unguarded, if so located as to be perilous to one performing the duties imposed on him. There is no such necessary inference, and we cannot say that plaintiff’s allegations of absence of knowledge or means of knowledge are inconsistent with the other facts and conditions stated, if, as alleged, it was the part of ordinary care to keep knives so placed guarded and covered from contact.

Next, appellant contends that it is apparent that a man-could not get his foot in contact with these knives, situated, presumably, two feet or more above the floor, and eleven inches in under the plane table, without negligence on his part; hence that we must hold that contributory negligence-conclusively appears, notwithstanding the allegation to the contrary. As already stated, upon demurrer all reasonably possible inferences must be resolved in plaintiff’s favor upon the question of contributory negligence, — a defense, — and any facts controverting its existence as to which the complaint is silent must be presumed to exist. Now, the facts-stated are simply that plaintiff was pulling on reluctant boards, and his foot was caught by these knives. He may-have been braced by his foot against the end of the planer,, whence a slip might easily have sent it to contact with the knives, or he may have slipped and fallen to the floor, so that *526■a foot, flying upward, might reach them. Such, events are so within the experiences of such employment that they should ■be in contemplation by both employer and workman. *Nadau v. White River L. Co.*76 Wis. 120, 128, 43 N. W. 1135; *Darcey v. Farmers’ L. Co.*87 Wis. 245, 249, 58 N. W. 382. Nor can it be said, as matter of law, that they could not happen in the exercise of due care. It therefore is not beyond reasonable possibility that the plaintiff might have suffered the alleged injuries without negligence on his part, and we must agree with the court below in holding the complaint .sufficient to state a cause of action.

*By the Court.*— Order overruling demurrer is affirmed.