The plaintiff worked for the defendant in the laundry of his hotel and received an injury by having her hand drawn into a power mangle while she was operating *518it. The action is case for negligence. The cause was tried by jury. Verdict and judgment were for the plaintiff. The defendant excepted.
The mangle in question, as the testimony tended' to show it, is as follows: There is an iron steam chest six feet and ten inches long resting on frame work. The upper surface of this chest is concave, and a large cylinder twenty inches in diameter and of the same length as the chest and wrapped with felt and covered with canvas, is so fixed above the chest that it fits into the upper concave surface of the chest. The chest surrounds the lower half of the cylinder, and the two are in close contact except that when the machine is in operation the chest recedes from the cylinder about one-fourth of an inch on the receiving side. At the upper edge of the chest, and on the side at which the operator of the machine stands, and of the same length as the chest, is a brass cylinder four inches in' diameter called an apron. The top of the apron is about three feet and four inches from the floor, and the top of the revolving cylinder is about two inches higher. The machine is run by water power, and when it is in use the steam chest is full of steam and is very hot. The apron is stationary and is from half an inch to three-fourths of an inch from the cylinder, and as the latter revolves, in the* operation of the machine, the stuff to be ironed is fed over the apron. It is the duty of the operator to spread the stuff to be ironed over the apron and push it over and downward until it ¡is caught by the machinery described, when it is drawn on and ironed. The exact line of contact between the cylinder and the steam chest cannot be seen by the operator on account of the position of the apron, but the point of contact at either end of the machine can be seen from the corresponding end. The cylinder revolves slowly making from three to five revolutions a minute. The way in which the revolutions are regulated was explained without objection by an expert who had examined this machine and was familiar with mangles of the make of' that in question. He said: “There are four inch pulleys running approximately about one hundred revolutions. On the' end of those pulleys are what is called a pinion-gear, about four inches in diameter, that runs into another gear about twenty inches, and a return on the same. There is another *519four inch pinion-gear running into a gear on the roll, bringing the thing down to about twenty to one from the original start of the power, in other words reducing it approximately from the one hundred revolutions down to approximately about five revolutions of the roll a minute.” He explained also, without objection, that the steam chest was pressed up against the roll by springs underneath regulated by a screw.
The machine in question was one of the Poland Company’s manufacture, and the evidence tended to show that machines of this make are ordinarily equipped with guard rails, and that this machine had been equipped with a guard rail which fitted into small sockets, and that when the guard rail was in place is was about half an inch above the apron over which the material to be ironed was to be placed, and that its purpose was to keep the hands of an operator from being drawn in where they would be injured, and that without a guard rail the machine was not a safe appliance for mangling. The machine was bought by the defendant of a former owner of the hotel and the guard rail, which had been removed under the former ownership, had not been in place after the purchase up to the time of the injury to the plaintiff.
The plaintiff was a woman about forty-three years of age who had been in this country about fifteen years. During the greater part of that time she had done chamber work. The matter of her experience with a mangle was very fully gone into in evidence. What appeared in that regard was that before she entered the employ of the defendant she had worked more or less at laundering with a small mangle turned by hand. For a few months before the accident she had worked for the defendant in his laundry. Her work there was upon the washing machine and, as she testified, as an all-around helper. Mrs. Heaphy, who superintended the laundry, and who hired the plaintiff, testified that it was no part of the plaintiff’s work to operate the mangle. The plaintiff testified that she had on a few occasions run articles through the mangle when Mrs. Cashen, the head laundress and mangle operator, was at her side. But the tendency of all the testimony was to show that the plaintiff could have done very little of this work, for Mrs. Heaphy who had charge of the laundry testified that she was there a good *520deal and that she never saw the plaintiff working on the mangle. And Mr. Heaphy, who, as the testimony tended to show, was frequently in the laundry, testified that he never saw the plaintiff -at work on the mangle.
The accident happened while the defendant and his wife were away on a visit, and while Mrs. Cashen, the head laundress was on a short vacation; and the claim of the defendant was, and his evidence dended to show, that the plaintiff at the time of the accident was at work upon the mangle in disregard of instructions that it should not be operated in the interval referred to, liability of an accident being, as the defendant testified, one reason for the instructions. On the contrary the plaintiff testified that she was asked by Mrs. Heaphy to do the mangling of the pieces except the tablecloths, during the visit and vacation referred to. Here was a sharp contradiction in the evidence and in considering as we are about to do, whether or not the ■ court erred in not directing a verdict for the defendant, we are bound to view the evidence in the light most favorable to the plaintiff.
At the close of the evidence the defendant moved, on various grounds, that a verdict be directed in his favor. One of the grounds, stated in various ways, was that the evidence did not tend to show negligence on the part of the defendant.
The defendant was bound to furnish the plaintiff with reasonably safe machinery and appliances, reference being had to the character of the employment, and we think there was evidence fairly tending to show that the defendant was negligent in respect to providing for use this kind of a mangle without the guard rail provided for and ordinarily used upon it; and so the question of negligence on the part of the defendant was •for the jury. Geno v. Falls River Paper Co., 68 Vt. 568; Morrisette v. Canadian Pacific Railway Co., 74 Vt. 232; McDuffey’s Admrx. v. Boston & Maine R. Co., 81 Vt. 52; Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416; Marshall v. Dalton Paper Mills, 82 Vt. 489.
A second ground of the motion, stated in different ways, was that the-plaintiff assumed all the risks which she encountered.
If the absence of the guard rail constituted a defect or imperfection in the machinery owing to the master’s negligence, *521and it was for the jury to say whether or not it did, the plaintiff cannot be said, as matter of law, to have assumed the risk of working with such defective machinery, for according to the tendency of the evidence she knew nothing of such an appliance as a guard rail. The law did not impose upon her the duty of becoming an inventor, and of determining that such a machine should have a guard rail, and did not hold her to have assumed the risk consequent upon the lack of an appliance which she knew nothing about. The claimed duty of invention on the part of an employer was effectually disposed of in Farrington v. Rutland Railroad Co., 72 Vt. 24; and it needs no discussion to show that such duty does not exist on the part of an employee.
There can be no assumption of risks due to a master’s negligence in providing defective machinery unless the servant knows, or must be taken to know, both of the defect and of the danger attending it. The doctrine is thus stated in Skinner v. C. V. R. Co., 73 Vt. 336, 340, where it is said: “If a servant, knowing that the master has neglected his duty and that he Is thereby subject to dangers not incident to the employment, continues in the service, the increased danger becomes an incident ©f the service which he assumes, and, for an injury resulting therefrom, the master is not liable.” This passage is, without change but with due credit, incorporated into the text of the third edition of Cooley on Torts, and is given as a correct statement of the law on the point under considerations. Cooley, Torts, 1045.
That a' servant does not assume the risk of encountering dangers caused by the master’s negligence unless he knows, or must be taken to know, that such dangers result from defective conditions is the clearly expressed doctrine of the still earlier case of Severance v. New England Talc Co., 72 Vt. 181. There an employee was injured because the wall of an excavation had not been left in a reasonably safe condition. The Court said: “There was no special assumption of this risk, for it does not appear that the plaintiff knew that the wall had been left in an unnecessarily dangerous condition.”
In Johnson v. Boston & Maine Railroad, 78 Vt. 344, 347, this Court said: “So it is that a servant, when, in the course of his employment, a special and obvious risk is presented to *522him, one not ordinarily incident to the business, may, as a. rule, decline to accept it; but if he choose to encounter it, he assumes it.”
But a special risk is not “presented to him” when it appears in the guise of an ordinary risk, and he does not “choose to-encounter” such a risk unless he knows its nature.
In Williams v. Norton Bros., 81 Vt. 1, 8, it is said of the plaintiff: “Whether he had an opportunity to see defects or was chargeable with knowledge of them were questions of fact for the jury to determine upon all the evidence;” and Severance v. New England Talc Co., 72 Vt. 181, is referred to. n Vaillaincourt v. Grand, Trunk R. Co., 82 Vt. 416, a case much In point, it was held that such knowledge of dangerous conditions as was admitted was, on the question of the assumption of risk, immaterial “in the absence of actual or imputed knowledge of the defect which caused the accident and a comprehension of the danger attending it.”
The doctrine that in order to the voluntary assumption of an extraordinary risk one must know not only of the dangers he is encountering, but also that he is encountering risks due to defects or imperfections, runs through the case of Marshall v. Dalton Paper Mills, 82 Vt. 489. For the claim is there com-batted that the plaintiff therein knew or ought to have known that the defendant had neglected its duty.
That knowledge, actual or imputed, of a defect or imperfection and not merely of a dangerous condition is essential to the asumption by an employee of the risk thereby caused is the doctrine of Miner v. The Franklin County Telephone Co., 83 Vt. 311.
Of course, it is often the case that knowledge of a danger, which exists in consequence of a defect, carries with it knowledge that the danger is due to such defect, and so it has not been found necessary in every case to state the whole law of the subject, but the rule herein stated is not questioned in this State. A servant is not required, for the protection[of his rights, to qualify himself to pass upon the sufficiency of the machinery furnished him for use, nor upon the methods by wfhich his master conducts his business, but may assume that the master has fulfilled his obligations. Miner v. Franklin County Telephone Co., 83 *523Vt. 311, 320; Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416 435, Drown v. N. E. Telephone etc. Co., 80 Vt. 1, 15.
The true doctrine of the assumption of risk is well and briefly stated by the United States Supreme Court in Washington etc. R. Co. v. McDade, 135 U. S. 570, where the statement of the doctrine as applied to that ease is this: “If the employee knew of the defects in the .machinery from which the injury happened and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk.”
A statement so full and exact as to challenge criticism is found in Choctaw etc. R. Co. v. McDade, 191 U. S. 64. We quote: “The question of assumption of risk is quite apart from that of contributory negligence. The servant has the-right to assume that the master has used due diligence to provide suitable -appliances in the operation of his business, and he does not assume the risk of the employer’s negligence in performing such duties. The employee is not obliged to pass judgment upon the employer’s methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. This-rule is subject to the exception that where a defect is known, to the employee, or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus in the face of knowledge and without objection, without assuming the hazard incident to such a situation. In other words, if’ he knows of a defect, or if it is so plainly observable that he may be presumed to know of it, and continues in the master’s employ without objection, he is taken to have made his election to continue in the employ of the master, notwithstanding the defect, and in such ease cannot recover.”
The rule that knowledge of the defect as well as of the danger is essential to the assumption of risk has been followed in the Federal courts generally and is nowhere made more clear than, by Judge Lurton in National Steel Co. v. Hore, 155 Fed. 62, where he says: “To defeat an action by the defence of assumption of risk, the employer must show not only that the servant knew of the negligence of which he complains, but that he knew and understood or ought to have known and appreciated, the-*524Increased danger to which he voluntarily exposed himself.” He emphasizes the distinction between knowledge of defects .and knowledge of risks therefrom arising, and makes both ■essential to defeat recovery on the ground of assumption of 3-isk when an injury has resulted from the furnishing of defective .appliances by the master.
In Chicago etc. Ry. Co. v. Prescott, 8 C. C. A. 109, 23 L. R. A. 654, 59 Fed. 237, the Court said: “The doctrine of voluntary assumption of a risk as distinguished from contributory negligence, is generally applied in cases arising between employer and employee, where an employee, without any •valid excuse for so doing voluntarily undertakes to work with ra tool or any appliance which is known to be defective.”
In Kattalla Co. v. Rones, 186 Fed. 30, a case decided in the circuit court of appeals, an instruction was approved which :made it essential to the assumption by a servant of an extra ordinary risk consequent upon the character of the place in which he is required to work that “it is apparent and obvious ~to him that the employer has not furnished a reasonably safe place.”
The supreme court of Pennsylvania has stated the doctrine in its application to machinery with great precision. It has said: “He, [the servant] certainly has the right to expect his employer to provide machinery, tools, and appliances that are reasonably safe for his use, and he assumes no risks growing out of their defective character, unless he has been fully advised that they are defective and dangerous. He has the right to suppose that his employer has provided such guards and means of protection from injury in the use of the machinery, tools, and appliances asare usual and reasonably necessary for his safety.” Rummell v. Dillworth etc. Co., 131 Pa. 509, 19 Atl. 345, 17 Am. St. Rep. 827.
The rule thus stated is applied in Cargill v. Philadelphia Towel Supply & Laundry Co., 185 Pa. 269, 39 Atl. 962, the facts of which are not fully stated in the opinion, but are clearly set out by reference in Bartholomew v. Kemmerer, 211 Pa. St. 877, 60 Atl. 908. Both cases, it may be well enough to mention, were cases in which it was held that the plaintiff was entitled *525to go to the jury because of the absence of a guard rail on a. mangle in the operation of which she was injured.
“Assumption of risk in its true sense,” says the supreme-court of Iowa: “Has reference to risks arising out of the negligence of a master when such negligence is known to the employee and the danger therefrom appreciated by him.”' Duffey v. Consolidated Block Coal Co., 147 Iowa 225, 124 N. W. 609, 30 L. R. A. ( N. S.) 1067.
When the Iowa court speaks of the assumption of risk, in its true sense it is by way of distinction between that and what is quite commonly called the assumption of the natural, and ordinary risks of an employment. For to say that the servant assumes the latter is but another way of stating the rather obvious truth that the servant cannot recover on the ground of the negligence of the master unless the master has-been negligent.
Already the court last referred to had declared that the-servant “never takes the risk of the master’s negligence under any circumstances, save when he knows of such negligence,, or as a reasonably intelligent person ought to have known of it.”' Martin v. Light Co., 131 Iowa, 724, 106 N. W. 359.
In Tyrrell v. Kane Co., (Iowa) 128 N. W. 536, which was-a mangle case, the supreme court of Iowa in distinguishing the case before it from another applied the doctrine stated in the following discriminating paragraph: “In that case the-employee knew that proper safety appliances were absent and. continued in the employment without objection notwithstanding, such absence. In the case before us, plaintiff, while appreciating the danger of getting her fingers caught in the revolving rollers,, knew nothing about any appliances being practicable or usual, which would have lessened the danger, in other words the plaintiff, while assuming the risk generally incident to employment, about such a machine, did not assurance the risk involved in the-absence of safety appliances for she had no knowledge that-such safety appliances, as would lessen the danger had been omitted.”
The defendant in the case cited had neglected a statutory duty but, because of the general principle above stated, the-*526court found it unnecessary to decide whether or not the plaintiff could assume the risk arising from such neglect.
In Ohio the nature of the assumption of a risk has been clearly expressed, for, in distinguishing the doctrine in that regard from that of contributory negligence the supreme court of that state has said: “Acquiescence with knowledge is not synonymous with contributory negligence. One having full .knowledge of defects in machinery with which he is employed may use the utmost care to avert the dangers which they threaten.” Hesse v. Columbus etc. R. Co., 59 Ohio St. 167, 50 N. E. 355.
In speaking of the assumption of extraordinary risk the ■supreme court of Connecticut says: “It arises from the fact that the servant knowing of the abnormal risk has willingly •encountered it.” Worden v. Gore-Meehan Co., 78 Atl. 432.
And elsewhere the same court states the rule by saying: “A servant assumes the risk when he knows the defective eon•dition of an instrument, appreciates the danger from its use, -and voluntarily encounters the risk.” Elie v. Cowles & Co., 82 Conn. 236, 73 Atl. 258.
The doctrine of the assumption of risk is grounded on the idea of intelligent choice and is well expressed by the supreme court of Massachusetts thus: “The servant assumes the danger of the employment to which he voluntarily and intelligently ■consents, and while, ordinarily, he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly ■consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such ■precautions.” Leary v. Railroad, 137 Mass. 580, 2 N. E. 115.
In a recent Massachusetts case the doctrine of assumption ■of risk is again stated with great clearness. After a statement ■of the principle that an employer is bound to furnish his employee with reasonably safe tools and appliances the court says: “If, however, when furnished with an improper tool or unsafe appliance, the workman fully comprehends its defects and imperfections, and realizes the nature and extent of the danger which will arise from their use, and voluntarily, without compulsión or exigency, intelligently and intentionally proceeds to use *527them he must abide the consequence. ” O’Toole v. New England Gas & Coke Co., 201 Mass. 126, 87 N. E. 608.
This case is especially instructive because, for one reason, the court was not misled by the familiar character of the appliance in question, which was a wheelbarrow.
In Klofski v. Railroad Supply Co., 235 Ill. 146, 85 N. E. 274, the court express the doctrine thus: “The master’s negligence is not an ordinary and usual risk of the employment, hence the servant does not assume dangers arising therefrom by his contract of hiring, but the servant knowing of such negligence may assume the risk.”
This case follows Browne v. Siegel etc. Co., 191 Ill. 226, 60 N. E. 815, where the court, after stating the duty of the master in respect of machinery and appliances, adds: “ But even if the master fails in such duty, and there are, to the knowledge of the servant, defects in such machinery, means, appliances, which render their use hazardous, he is held to have assumed the hazard.”
A further citation is essential to a full statement of the doctrine as understood in Illinois: “A servant who knows that there are dangerous defects on premises where he works, and does not make complaint and ask for repairs or improvements necessary for his safety, assumes the risk involved.” Cichowa v. International Packing, Co., 206 Ill. 346, 68 N. E. 1083.
In Arkansas the matter is put in this way: “It is only where the servant is aware of the defect and voluntarily exposes himself to the danger that he can be said to have assumed the risk. ” St. Louis etc. Ry. Co. v. Vann, 135 S. W. 816, (Ark.)
In Texas it is held that to charge an employee with the assumption of the risk of using a defective implement it must appear “that the employee knew of the defects or that in the ■exercise of ordinary care in the discharge of his duties, he must ^necessarily have acquired the knowledge.” Texas Co. v. Garrett, 134 S. W. 812, (Texas Civil Appeals).
The rule as to the assumption of an extraordinary risk consequent upon defective machinery is fully stated in Bloom v. Yellowstone Park Association, 86 Minn. 237, 90 N. W. 397, where, among other things it is said by Chief Justice Start: “To justify the court in a given case in holding as a matter of *528law that the servant assumes the risk incident to the use of defective and dangerous machinery, it must clearly appear from the undisputed evidence that he knew of the defects therein. ’7
In that case the plaintiff was injured in the operation of an unguarded mangle. The court made short work of the question of negligence on the part of the defendant, declaring that all modern mangles are provided with a guard, that it was perfectly practicable for the defendant to have a guard on this machine, and that with such a guard the machine was reasonably safe and without it dangerous. But in that case the plaintiff had had considerable experience in feeding a mangle properly equipped with a guard, it appeared that she knew of the guard and its purpose, and the court held that from the evidence no other reasonable inference could be drawn than that “she knew and appreciated the defects in the mangle” and the risks incident to the operation of the machine in its defective condition.
In South Carolina it is held that assumption of risk is in the nature of a waiver, on the part of the servant. Bodie v. Charlestown etc. R. Co., 61 S. C. 468, 478, 39 S. E. 715; Hall v. Northwestern etc. R. Co., 81 S. C. 522, 62 S. E. 848.
The New York court of appeals calls the assumption of an extraordinary risk “an independent act of waiver” on the part of the servant “evidenced by his continuing in the employment with a full knowledge of all the facts.” Drake v. Auburn City Ry. Co., 173 N. Y. 466, 66 N. E. 121.
In Blanchard v. Vermont Shade Roller Co., 84 Vt. 446, where a servant was promised protection from certain risks this Court said: “The protection promised was to take the place of the ordinary safeguards, the presence of which might have hindered the defendant’s work, but the absence of which made the place unsafe; and the plaintiff was entitled to one thing or the other unless both were waived.”
Many courts speak of the assumption of risk as in the nature of a waiver; but if anything,in the law is certain it is that a waiver is • the intentional relinquishment of a known right. Webster v. State Mutual Fire Ins. Co., 81 Vt. 75; Christenson v. Carleton, 69 Vt. 91, 37 Atl. 226; Donohue v. Windsor County Ins. Co., 56 Vt. 374, 382.
*529A waiver presupposes a knowledge of the right waived, and there can be no waiver by a servant of the right to better protection unless he knows of the facts which give him such right. So all the courts which treat the assumption of risk as a waiver, must be taken as holding that there can be no assumption of the risk consequent upon the use of defective machinery unless the servant knows not only that it is dangerous but also that it is defective;
In Smith v. Baker, 1 App. Cases, (1891) Lord Morris pertinently said: “how can the plaintiff be held to voluntarily incur a danger from unfit machinery the unfitness of which he was admittedly not aware of?” This was the unanswerable reasoning which governed the decision of a case that had been vigorously contested at every stage. The later case of Williams v Birmingham etc. Co., 2 Q. B. (1899) 338, an action at common law, shows that the doctrine of the assumption of risk as herein maintained is established in England.
The governing maxim is volenti non fit injuria not scienti non fit injuria, Drown v. N. E. Telephone etc. Co., 80 Vt. 1, 13; Thomas v. Quatermaine, 18 Q. B. D. 685; and this is so because 'the former expression is inclusive of the latter and makes it tautological to state the maxim in the form used by Bracton, who says volenti et scienti non fit injuria, and who labors to avoid misunderstanding by talking of one who has been freely willing, —“gratis voluerit.” 5 Bracton, 262, (Twiss’ Ed.) f. 413b.
That knowledge, or imputed knowledge, of the dangerous character of a machine does not charge the servant with the assumption of an extraordinary risk unless he knows or must be taken to know that the risk is not an ordinary one must be true, for otherwise there would be no meaning in what is generally said as to the bearing of complaints to the master about defects in machinery and of promises by the master to repair. Washington etc. Co. v. McDade, 135 U. S. 554, 570; Harris v. Bottom, 84 Vt. 28.
The duty of the servant to give notice or make complaint of defects that he does not know of has never been consciously recognized by any court.
When it is said as it is in many .of the cases cited that a servant assumes known risks and dangers it is to be understood that *530the knowledge referred to relates to the source and nature of the risks and dangers as well as to their character and extent, and such general expressions are to be construed in the light of the specific statements to which reference has been made.
Any other view results in a hopeless confusion between 'the doctrine of assumption of risk and that of contributory negligence, or in the mistaken idea that they are the same, or near enough the same, for practical purposes, or in speaking of contributory negligence as assumption of risk in a secondary sense.
As has been sometimes commented on, it is by no means always clear whether a particular discussion relates to contributory negligence or to the assumption of risk, or, indeed, to negliigence on the part of the master. But non-liability of a master' 'because he has not been negligent, his non-liability because This servant has voluntarily assumed a risk in encountering which lie had been injured, and non-liability of the master because of the contributory negligence of the servant, are separate and distinct and there are abundant reasons why only harm can come from their confusion. Note to Scheurer v. Bannar Rubber Co., 28 L. R. A. (N. S.) 1215.
What is here said is not to be understood as in any way derogating from the doctrine that an employee, whatever his knowledge, cannot assume a risk consequent upon his employer's neglect of statutory duty imposed in the exercise of the police power. Kilpatrick v. Grand Trunk R. Co., 74 Vt. 288, 99 Am. St. Rep. 887.
The above case, twice here, 74 Vt. 288, 72 Vt. 263, shows the necessity of clearly distinguishing between assumption of risk and contributory negligence, for it is therein held that while there can be no assumption of the risk caused by the employer’s neglect of such a statutory duty, nevertheless, in such case contributory negligence may defeat recovery.
Since the evidence here tended to show that the plaintiff was encountering no risks except such as she supposed to be ordinarily and necessarily attendant upon the operation of the mangle, it cannot be said that she knowingly and intelligently chose to. assume the risks consequent upon a defect in ±he machinery unknown to her.
*531No reference has thus far been made to the case of Wiggins v. E. Z. Waist Co., 83 Vt. 365, for, except that it grew out of an injury incurred in the operation of a mangle of some sort, it has little in common with this case. There the mangle, such as it was, had upon it a guard rail which was inadequate and so the operator was not left to conjecture as to whether there was such a device, and it was held that the whole situation was one of which the plaintiff had full understanding. The case will again be referred to.
Though the plaintiff did not, as matter of law, assume the risk of the defect pointed out, still she was bound to exercise the care and prudence of a careful and prudent person' in the situation in which she was and with reference to the existing and obvious dangers however they may have been caused; for “the care and prudence of a prudent person in any circumstances depends upon the nature of those circumstances.” Harris v. Bottom, 84 Vt. 28, 34, 35, Hartigan v. Deerfield Lumber Co., 85 Vt. 133.
In O’Toole v. New England Gas & Coke Co., 201 Mass. 126, 87 N. E. 608, it is well said of the duty of care on the part of the employee: “This duty rests on him equally, whether the employer had done his duty or has failed in its performance. The standard of duty for the employee is the same, whether he is provided with tools and appliances which are in good or in bad condition. He must at all times be in the exercise of due care.” This quotation is from the wheelbarrow case in which, for the reason already stated, it was held that it could not be said, as matter of law, that the plaintiff had assumed the risk in encountering which he was injured, and in which it was further held that the question of contributory negligence was for the jury.
It is held in this State that in a negligence case the burden of showing freedom from contributory negligence is on the plaintiff. But in order to sustain this burden it is not necessary that there should be evidence distinctly directed to that negative proposition. Barber v. Essex, 27 Vt. 62, 69; Hill v. New Haven, 37 Vt. 501; Fassett v. Roxbury, 55 Vt. 552; Manley v. Delaware & Hudson Canal Co., 69 Vt. 101; Winifred Bros. v. Rutland R. Co., 71 Vt. 48; Sherwin v. Rutland R. Co., 74 Vt. 1; LaFlam *532v. Missisquoi Pulp Co., 74 Vt. 125; Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 302; Morris v. Trudo, 83 Vt. 44.
In the examination of the plaintiff counsel for both parties required her to illustrate, by holding a towel before her, the way she was doing the work at the time of the accident, and while this fact makes it somewhat exceptionally difficult to-judge of the tendency of her testimony, it must be said that her testimony fairly tended to show that she was free from contributory negligence.
The defendant argues the case largely upon the claim that this machine was like an ordinary clothes wringer, only larger, but the description of the machine is inconsistent with this claim. Some mangle cases in which recovery has been denied turn upon the fact that the cloth is, before the very eyes of the operator, drawn between two rolls revolving inwardly like the rolls of a clothes wringer, so that it is made apparent at a glance that if the hand follows the cloth it can touch nothing stable like the steam chest here, but must inevitably be grasped and carried forward by the rollers if it is allowed to follow the cloth too far. Of this class was the Wiggins case, 83 Vt. 365.
Of course, as is claimed, the plaintiff knew that the mangle was hot and that the tendency of the machine would be slowly to draw in things once gripped by it if they were not too large. But the evidence on her part tended to show that she had not actual or imputed knowledge of the full situation; that she, in fact, knew nothing of the amount of power driving this slowly revolving cylinder, geared as it was, and that she had no full appreciation of the difficulty or impossibility of stopping or' pulling back her hand if it should once go too far.
The plaintiff testified that at the time she was hurt she-was looking right at her work, right at the towel, and observing; how it was going, and not looking at the cylinder. One ground of the claim that the plaintiff was guilty of contributory negligence is that this testimony showed that she was not in the-exercise of due care “because she says she wasn’t looking at. the mangle but was looking down on the towel itself.” Had. she said she was looking at the cylinder and not at the towel which she was guiding, there would have been a stronger ground for the claim that her testimony as to where she was looking. *533showed contributory negligence. If she was looking down at her work the dangerous parts of the machine must have been within the range of her vision. The precise phraseology of a witness in such a matter is not often of much significance.
The defendant in fact claimed on trial that the plaintiff was not looking at her work as she claimed or at the machine, but that she was looking away at or for or after one Maggie Doyle. How this was it was, of course, for the jury to decide.
We have examined numerous cases growing out of injuries-to operators of mangles. In some recovery has been had, in others it has been denied. It is very clear that such machines vary much in their construction, that each case must stand or fall upon the evidence peculiar to it, and that it would be unfortunate, not to say absurd, for the courts to undertake to develop a body of mangle law.
The plaintiff’s counsel in an opening statement made a reference to what he claimed would be shown in regard to the guard rail; and there was evidence introduced in support of the claim made in the opening statement. The mangle in question was exhibited to the court and jury during the trial. At the time of its exhibition, the guard rail was also shown. There was no objection to the use made on trial of the machine itself, but the defendant had an exception to the admission of some of the evidence relating to the guard rail and its function, to the opening statement in regard to it, and to the ruling permitting the jury to see it. It is claimed that there was error in all this.
But the grounds of this claim have been fully considered in the discussion of the question of the assumption of risk.
Whether or not the defendant, or his ■ superintendent prior to the accident, knew that a guard rail belonged on this machine and was there on his premises was a question in dispute. Mr. Heaphy testified that he did not have any such knowledge and Mrs. Heaphy, the superintendent of the laundry, testified that she did not. The sockets for it were on the machine, and Mrs. McCormick, the head laundress under a former ownership of the "hotel, and for a time under the ownership of Mr. Heaphy, testified, under objection and exception, that she, during such former ownership, had taken the guard rail off and put it away, and *534that she had told Mrs. Heaphy about it and where it was. The reply of Mrs. Heaphy to this notice, as given by the witness, ran on into a statement of Mrs. Heaphy’s views as to the effect of Mrs. McCormick’s action upon her right of recovery if she had got hurt. But with respect to this part of the conversation the defendant makes no point upon his brief, and so we dismiss it from consideration. The substance of the conversation tended to show the knowledge which the defendant’s evidence denied and was admissible.
Mrs. Heaphy took the stand and denied any recollection of any conversation with Mrs. McCormick about the guard rail. She was cross-examined about that, and testified that she never knew anything about a guard rail until it was put on. Subject to objection and exception, the plaintiff’s counsel was allowed to elicit testimony tending to show that the guard rail had been on the machine since the accident, had been put on right after the accident.
This evidence as the transcript shows was not received for the purpose of showing negligence on the part of the defendant in not having the guard rail on the machine before, and it would have been inadmissible for that purpose. Place v. Grand Trunk Ry. Co., 82 Vt. 42. All that was claimed for it was that it tended to contradict both Mr. and Mrs. Heaphy, both of whom had said that they didn’t know of the guard rail. The way the matter stood appears from what transpired in argument. Mr. Lord, of counsel for the plaintiff, referred to-this testimony and upon objection being made said: “It goes to the testimony of both Mr. and Mrs. Heaphy to their knowledge of the existence of the guard rail. They said they did not know it was there. How did they have it to put on and not know what it was for?” The court permitted this line of argument but stated at the time that the evidence had no-bearing whatever upon the question of whether or not the defendant was negligent in not having the guard rail on the machine before the accident. Counsel for the defendant expressed no objection to the right of the opposing counsel to make this-argument from the evidence but said: “In view of what may be claimed for it we save the question.”
*535The full transcript of the case is referred to and made controlling, and has been examined upon all points, and it is clear that.the apprehension of the defendant’s counsel that an improper argument might be based upon the evidence or an improper use otherwise made of it, was dispelled.
The plaintiff called as a witness W. J. Donovan who qualified as a machinist and engineer of very long experience. His experience, as testified to by him, included the setting up and repairing of laundry machines and laundry plants, including the plant of the Boston City Hospital, of which he had had charge as master mechanic for many years, and repairs of laundry plants about the hotels and public baths of Boston. His testimony was to the effect that as a machinist and engineer he had become familiar with various kinds of mangles, of which four or five kinds had been looked after by him in the Boston City Hospital. His testimony tended to show special familiarity with the mangles manufactured by the Poland Company, which was the kind of mangle in question; that he had done work for the company and had made substantial parts of its mangle. His experience as a machinist and engineer, in matters not connected with laundries, we omit to refer to, but i't was such that the court found him qualified as an expert in respect to machinery in general; and, under objection and exception, he was permitted to testify that the guard rail, which had been shown him, was ordinarily a part of a mangle of the kind in question, that its purpose was to prevent injuries to the. hands of an operator, and that, with the guard rail on and properly adjusted, it would prevent- an operator’s hands from being drawn into the machine, and that the mangle in question, which also had been shown him, was, without the guard rail, not a safe appliance for use in mangling.
The defendant urges the inadmissibility of Mr. Donovan’s testimony as to the purpose and effect of the guard rail and the inadmissibility of his opinion that the machine in question, without the guard rail, was not a safe appliance for mangling, on two grounds: The first is that all the testimony as tp the guard rail' was inadmissible;, that we have' already considered and passed upon. The only other ground urged in the brief is that the opinion of the expert that the machine was a dangerous *536one to use without the guard rail was not within the scope of proper expert testimony. But that was not the ground of objection below. The objection there made was that the witness hadn’t shown any expert knowledge on the subject of running a mangle, and that point is not relied on here. So neither point comes in for consideration. Foster’s Exr. v. Dickerson, 64 Vt. 233; State v. Noakes, 70 Vt. 247, 257; Graves v. Waitsfield, 81 Vt. 84; State v. Manley, 82 Vt. 556; State v. Roby, 83 Vt. 121; Jewell v. Hoosac Tunnel etc. R. Co., 85 Vt. 64, 81 Atl. 238; Coolidge v. Taylor, 85 Vt. 39, 80 Atl. 1038.
The defendant presented twenty-five requests to charge and excepted “to the refusal of the court to charge according to each and every request requested by the defendant,” and “to the charge of the court as given in respect to each and every request requested by the defendant.”
Some of the requests could nob have been properly complied with. Some were complied with. They relate to every question that could readily be thought of in connection with the case. The general exceptions just referred to are like an exception to an entire charge, not wholly unsound, and avail nothing. The defendant specifically excepted to the failure of the court to comply with its request No. 22, and to the charge as given in respect thereto. The request was this: “The defendant is not required to give special instructions unless there is some ■concealed danger about the machine.” If this request had Been in terms complied with it would have been necessary for the court to have explained what it meant by “special instructions. ” The court, however, charged in various places that the plaintiff was bound to know what was obvious that she could not recover on account of known and obvious dangers, that she was bound to take notice of the machine just as it was, that she was bound to see just what a prudent person could see, and we think that the request was in substance complied with. In argument the defendant says simply that the request was sound law and that it was error for the court to refuse to comply with it; but no claim is based upon that part of the exception which was directed to the charge of the court upon the subject matter of the exception.
*537The defendant took in all nineteen exceptions to the charge. In argument his counsel say: “Exceptions to the charge of the court numbered 6, 7, 8, 9, 10, 11, 12, 13, 14 and 18, should be sustained for reasons already stated.” The reference is to the reasons advanced in support of the motion for a verdict. These reasons have already been considered.
The bill of exceptions states particularly some of the exceptions, and refers generally to the transcript to show the •exceptions taken. The transcript shows numerous exceptions to the evidence taken by the defendant, but in accordance with the well settled rule, we have considered only those relied upon by !the defendant in his brief.
Judgment a firmed.
Powers, J., dissents.