Plaintiff recovered a judgment for $7500 on account of personal injuries and defendant has appealed. The plaintiff, about thirty years of age, was in December, 1912, working for the defendant in Butler county. At the time the defendant owned two sawmills designated as number '4 and number 3. They were three-fourths of a mile apart. On the 17th day of that month the plaintiff went from mill number 4 to mill number 3, at which latter place he was working at firing the boiler and looking after the engine and in doing this it necessitated repeated trips to be made between the engine and boiler and in order to do this it was necessary to pass over a two inch line shaft about eighteen inches above the ground. On this line shaft was a collar of a belt pulley that had been broken leaving some of the broken spokes of the wheel thereon, and there was also a set screw on the shaft, all unguarded. Number 3 mill had a short time prior to the accident been constructed and a floor placed in a portion of it which if it had been extended would have completely covered this line shaft. The mill had been sawing and piling up lumber for something like a month before the accident. The plaintiff was passing from the engine to the boiler and over this line shaft when the old collar, or the set screw, caught in his clothing, taking him around with the shaft ten or twelve revolutions, hitting him against the ground, tearing his clothing off of him about the middle of his body, rendering him unconscious, permanently injuring one of his ankles, almost destroying the hearing in one of his ears and causing injuries which affected his memory.
*412This action is based on section 7828, Revised Statutes 1909, requiring shafting in all manufacturing, mechanical and other establishments when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties to be safe and securely guarded when possible.
The defendant now contends that its mill number 3, was a mere shifting contrivance that is temporarily located in the woods to work up a small part of the there available saw timber and then to be shifted to another place for the same purpose, and that, therefore, it does not come within the scope and intent of the statute. This contention cannot be upheld because the defendant’s only witness testified that the mill was about ninety feet long and about eighteen feet wide and that it was running on the date of the trial, sixteen months after the accident to plaintiff.
The defendant contended at the trial and now argues here that mill number 3 was not completed and a going concern so as to come within the provisions of that law, but the testimony in behalf of plaintiff was to the effect that the mill had been producing and piling up lumber for sometime prior to the accident. The machinery was permanently located. The defendant offered only one witness, its theretofore sawyer, who testified that the buildings of the mill proper had not been completed at the time of the accident and that the only thing it had been run for was in cutting for building purposes and that if the floor had been' completed the shaft would have been under it. This is not similar to the case of Foster v. International Paper Co., 71 N. Y. App. Div. 47, cited and relied on by the appellant here, where the construction on the shaft was in progress when the accident occurred. Defendant’s witness did not testify that when the work on the construction of the mill is completed that the floor will be extended over this shaft. The defendant did not undertake to prove that it intended to extend the floor over this *413shaft. A witness for plaintiff testified that the shaft eonld have easily been protected. We hold that upon these facts defendant comes within the purview of the statute.
While it is not necessary for us to go to that extent it may be said that if the defendant was cutting material with this mill for its completion, the shaft ber ing permanently located, that then it was engaged in manufacturing within the meaning of the statute where so dangerous a shaft as.the one here in question, could have been protected with so little trouble and expense. The statute is remedial and highly salutary (Cole v. North American Lead Co., 240 Mo. 397, 407, 144 S. W. 855, and Strode v. Columbia Box Co., 250 Mo. 695, 704, 158 S. W. 22) and it appears that there is good reason for holding that when a manufacturing establishment is operating its plant in the same manner in which it would run it after completion for commercial purposes that under the circumstance here disclosed it should have protected the shaft that caused the injury.
Again it is contended by defendant that the plaintiff was not engaged in his ordinary duties when injured but the testimony is conflicting upon that point and the jury has resolved it in favor of the plaintiff, hence this point is ruled against defendant.
It is said the judgment should be reversed and the cause remanded for the reason that the verdict is so excessive as to be evidently the result of passion and prejudice. The above reference to the injuries of the plaintiff are sufficient, in my opinion, to justify the amount of the verdict, and especially since the trial court, who saw plaintiff and heard him testify, has refused to disturb it.
Numerous other questions are raised, such as contributory negligence and alleged improper remarks of counsel for respondent in his argument to the jury but all of these questions have been considered and found *414to be so lacking of merit as to justify no further comment thereon.
The judgment is affirmed in the event plaintiff remits according to the order contained in the concurring opinion filed herewith, otherwise it will be reversed and the cause remanded.
Farrington and Sturgis, JJ., concur in a separate opinion filed.