This case is one of a class which has become
quite numerous, in which the question arises whether a person who has received an injury from the alleged negligence of an - other was himself in the exercise of due care. The question what is due and reasonable care binder a particular state of circumstances is usually a question of fact for a jury. As the burden of proof is upon the plaintiff to show that, he used due care, if the evidence on his part has no tendency to show it, or tends to show that he was careless, it is competent for the court in *104such, a case to direct a verdict for the defendants. But unless it is perfectly clear that a plaintiff has not shown that he used due care, the case must be submitted to the jury.
The case at bar seems to us very near the line, but on full consideration we are of opinion that it did not fall within the province of the court as a matter of law, and that a new trial should be granted.
The injury was received by the plaintiff while in the course of his employment, and from a defect in the machinery belonging to and furnished by the defendants. Whether this defect was the result of the defendants’ neglect or want of care in omitting to ascertain its condition, was one question for the jury. If this was proved, it is still objected that the plaintiff’s exposing himself to the danger was unnecessary and voluntary. In a strict and absolute sense perhaps this is true. The plaintiff was not required to look down to see whether the beam was ready, or to put his head under the descending elevator. But we think this is too rigid a rule to be applicable to the common affairs of life. It can hardly be expected that workmen will not move a little while they are engaged about their work; and if they' are exposed to danger from defective machinery of which they are unaware, the question is, whether they were in a position such as, without carelessness, they might be reasonably and naturally expected to occupy, and not improper for a person so employed. This is a question of fact, under all the circumstances of the case, and not of law.
Exceptions sustained.