('dissenting.) I have the misfortune of not being able to agree with the majority of my Associates in ‘this case. As I view the record, this case should he governed by the Perreault and Iverson Cases. The logic of these two decisions is that the defendant was under the legal duty of furnishing plaintiff safe tools with which -to work, and that the dangers arising from the use of such unsafe tools were not of such open, visible, and plain a nature as to impute, to the servant required by the master to use the same, legal contributory negligence. This was the question presented in these cases, and on no other ¡theory can such-decisions be sustained. It seems to me that my worthy Associates have wholly failed to grasp or comprehend the legal principle involved, as was thought to- have been sustained, by the decisions in those two cases. The fallacy of the proposition on which the majority opinion is 'based fully appears in that part of the opinion which is as follows:
“Plaintiff testified: ‘If the guard had been there, I couldn’t have gotten my hand in there at all, and I didn’t realize that I was in danger of having my hand drawn into the wheel and crushed.’ The last part of this statement would have been very material if it were not for the first part of same. If the mechanism of the machine, in its normal condition, had contemplated the reaching to this boxing to¡ examine its condition while the separator was in operation and then, after the removal of the guard, plaintiff in attempting to discharge his duty, not realizing that he ‘was in danger of having my (his) hand drawn into the wheel and crushed,’ had received his accident, the situation would be analogous to that in, and' this case would be ruled by, the two cases above mentioned.”
The trouble with this statement is that the guard was not on the machine at the time of the injury, and the machine was not in a normal condition at that time. The fact that this machine at one time had a guard on and had been in a normal condition has nothing in the world to do with the 'determination of ¡the issues in this case, clearly showing that the majority opinion is1 *596based wholly upon a condition of affairs existing prior to the injury. If the plaintiff had gone upon this machine while it was in its normal condition and in some manner had managed to get bis hands into the cogs of this wheel, that would have presented another case, hut which is not this case by any means. The negligence charged1 in this case was that the owner of this machine required the plaintiff to work therewith and use the same while it was out of normal condition with no guard over the cogwheels in question. This is the state of facts on which this decision of necessity must be based. It was this out of normal condition that rendered this machine an unfit and an unsafe tool for plaintiff to work with'. It was plaintiff's duty to ascertain whether these boxings became heated while operating this machine in its out of normal condition. It is this condition, as shown by the evidence, that fairly brings this case within the rule anounced in Perreault and Iverson Cases. Under these conditions, as stated -m the majority opinion, the Perreault and Iverson Cases would become controlling. These were the conditions under which the plaintiff received his injury. He did not receive his injury by reason of any condition of this machine that existed while it was in a normal condition with the guard on. The fact that there was at one time prior to said injury a guard on said machine amounts no more than to: a distinction between this case and the 'Perreault and Iverson Cases without any possible difference. In the Per-reault Case the plaintiff while working with an unsafe machine had his foot caught between certain cogwheels; there had been some change in the working of the cogwheels; he knew- they were there, but they were not open to his observation at all times while he was at work; he said he did- not have the cogwheels, and! the injury he might receive from coming in contact therewith, in mind at the instant of the injury. It was urged by the defendant that plaintiff was guilty of contributory negligence because he knew of these cogwheels, that they were open to his observation, and' that lie assumed the risk of being injured when he worked with such unsafe machine under such conditions. But ■this1 court held1 that it was for the jury to' say, under these circumstances, whether or not plaintiff fully comprehended the dangers, 'and was guilty of contributory negligence. The salient facts of this case at bar are precisely the same. In the Iverson Case the *597plaintiff had his hand caught in a sausage grinder, he knew the augers which cut the meats would injure him- if his fingers came m contact therewith, -but the real danger was to some extent at times covered and hidden from view by the meats. In that case it was urged by defendant that the danger was open and plain to view, and that plaintiff assumed the risk and was guilty of contributory negligence. Hut this count in that case followed the rule of the Perreault Case that plaintiff, under the circumstances, might not have fully comprehended the dangers to which he was exposed. The evidence in the case at bar shows that -the boxings in question were hidden from view by the dust and dint surrounding the machine, and the inference in this case that plaintiff did not comprehend and fully realize the dangers to which he was exposed are much more strong than in either the Perreault or the Iverson Case. The statement in the majority opinion that “the last part of this statement would have been very material if it were not for the first part of the same” elearty shows that the majority opinion is based upon wholly immaterial matter instead of upon the latter part of the statement which alone is material.
The judgment appealed from should be affirmed.
SMITH, J„ concurs.