Opinion by
Mr. Chief Justice McBride.1. It is urged by defendant that there is no evidence to justify the verdict, for the reason that the injury suffered by plaintiff is not shown to have been the result of the defects in the machine which are set forth in the complaint. But there is certainly some testi*566mony given by plaintiff tending to show that the accident was occasioned by some insecurity in the brakes or clutches used for stopping and starting the machine. It either arose from this cause, or was occasioned by the plaintiff’s putting his hand under the dies while the machinery was in motion, which he swears positively he did not do. • It seems hardly probable from the testimony that the fact that the brakes and clutches were loose, or that a cog or two had been broken, brought about the injury; but the allegation that the clutches were insecure embraces any defect in them or in their operation which rendered the machinery liable to start up automatically after being stopped. That such a defect existed seems possible and perhaps probable from the testimony, and we have no right to disturb the finding of the jury on that subject, where there is any evidence to sustain it.
2. We think that the evidence of Nicol that the only way of locking the machine to prevent its going into gear was a piece of rawhide hanging upon it was relevant. It had a tendency to show that the appliance for holding the lever and clutches in place was a makeshift, and to establish a probable theory of insecurity of the devices for stopping and starting the machine.
3. We see no substantial error in the ruling of the court upon the cross-examination of the witnesses Nicol and Billings. It tended to explain the general character, construction, and operation of the machine in question, and to place the jurors in a position to be able to judge more expertly of the evidence showing the particular circumstances attending the injury. Perhaps the examination strayed a little from the straight and narrow path, but, in the hurry of a jury trial, it is unreasonable to expect that a circuit judge will always observe mathematical accuracy in defining *567the limits beyond which counsel may not go in such matters. Our circuit judges, when a jury case is upon trial, are called up to rule in a moment upon the most delicate questions relating to the admission or rejection of testimony; and for us to weigh their decisions made under such circumstances by the technical rules of logic and law would result in the reversal of half the cases tried by them. We should rather adopt the advice of the poet, “Be to their faults a little blind, and to their virtues very kind,” and reverse only for such errors as appear to have worked actual injustice.
4. The instructions quoted in appellant’s brief, taken alone, would have been misleading to the jury. They amount to a complete statement and almost a quotation of the employees’ liability law. In the abstract, they state the law correctly, but applied concretely to the case then on trial, they might have been so misleading as to have induced a verdict upon other defects or omissions not alleged in the complaint. However, the court in other portions of its charge very carefully limited and explained the relation of the liability act to the particular matters charged in the complaint. The following excerpts from the charge show to what extent the general language used by the court, and urged here as error, was qualified and explained:
“In determining whether or not the defendant was negligent, you should only consider whether the defendant was negligent in the particular respects set forth in the complaint, and you are not to consider whether or not the defendant may have been negligent in some other particular which is not alleged or specified in said complaint. * * The burden of proof is upon the plaintiff to establish by a preponderance of the evidence that he was injured in the way and manner described in the complaint, and, unless you so find, your verdict should be for the defendant. If you find and believe from a preponderance of the evidence that *568tlie machine which plaintiff was using was out of repair, or defective, in the respects charged in the complaint, but you should fail to find from a preponderance of the evidence that the said condition of the said machine caused the same to start up after it had been brought to.a stop, and to thereby occasion the accident, the plaintiff cannot recover, and your verdict should be for the defendant. The contention of plaintiff is that after he had thrown the machine out of gear and stopped the same, and thereafter put his hand in the machine for the purpose óf filling the dies thereof, that the machine suddenly and .unexpectedly, and without act on his part, went into gear and operation, thereby causing tlie accident. Before plaintiff can recover, he must establish to your satisfaction by a preponderance of the evidence that the machine did start up in the manner claimed, and also that it was caused so to do by reason of the machine being out of repair in the respects alleged in the complaint. ’ ’
In another portion of the charge the court specifically enumerated the various defects and claims of negligence mentioned in the complaint, and instructed the jury to confine its investigations to these exclusively. So that, taking the charge as a whole, it seems improbable that the jury could have failed to understand that their investigations should be confined to those defects and matters of negligent omission charged in the complaint.
5. The instructions in regard to assumption of risk were properly refused. In actions brought under the Employers’ Liability Act .(Laws 1907, p. 302), the defense of assumption of risk is not available: Hill v. Saugested, 53 Or. 178 (98 Pac. 524, 22 L. R. A. (N. S.) 634); Love v. Chambers Lumber Co., 64 Or. 129 (129 Pac. 492); Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351).
*569"While the evidence in this case is very contradictory, yet upon appeal we are compelled, under the peculiar provisions of our amended Constitution, to assume, after verdict, that all testimony of a prevailing party as to conditions which are not morally or physically impossible is true; and, if conditions so established will sustain the verdict of a jury, we are not at liberty to disturb it. There being no substantial error of law, and the jury having found the facts, the judgment must be affirmed. Afeirmed.
Mr. Justice Moore, Mr. Justice Ramsey and Mr. Justice McNary concur.