Opinion on Petition foe Reheaeing.
Ross, J.The appellee has filed a petition for a rehearing, and assigns numerous reasons why he thinks it should be granted. The substance of the argument to sustain his insistence, is that there is no variance between the allegations of the complaint and the proof, and that there is no conflict between the answers to the interrogatories and the general verdict.
Counsel seem to find fault, not only with the statement of what we deemed to be the material facts of the complaint, but also as to what we decided constituted the negligence of the appellant, as charged, resulting in appellee’s injury.
We probably would not have satisfied counsel better had we set forth in our opinion the entire' complaint, and we feel sure that that part of the opinion holding the complaint sufficient would not have appeared so well founded had we done so. As heretofore stated, the complaint charged the appellant with putting appellee to work at and upon a file machine which was defective, dangerous, and unsafe, in a certain respect,namely,in that the “groove or slot”which held the files in place was worn out, so that when he went to operate the machine, the groove or slot gave way, and the files which were placed therein fell, catching his hand and forcing it between the grindstones, injuring if, etc. The appellee saw fit to allege *473wherein the machine was ont of repair, defective, and dangerous, and it devolved upon him to prove the negligence charged in order to recover. When he charged that the appellant’s negligence consisted in setting him to work at and upon a machine, which he alleges was defective because the “groove or slot” was worn out, so that it would not hold the files, but broke, permitting them to fall, causing him to be injured, he does not make out a case, when he fails to prove that the “groove or slot” was worn out, but simply proves that a fellow-workman, who had operated the machine just before appellee, had packed the lower rubber on the file plate too high, thereby forcing the strap off the bottom of the file plate, thus causing the files to fall, catching his hand and forcing it between the grindstones. Even were the allegations of the complaint broad enough to charge the appellant with knowledge that the packing of the. lower rubber on the file plate was too high, the answers of the jury to the interrogatories show, not only that the appellant had no knowledge or notice that it was packed too high, but that the evidence fails to show how long it was in that condition prior to the time appellee was injured. If the appellant is to be held responsible for the high packing of the lower rubber of the file plate, it is because it had notice, either actual or constructive, of the existence of such packing. The jury have found that the appellant had no notice or knowledge of its existence, and they also find that the evidence does not disclose how long it had been in that condition; but it does show that the party who operated the machine just prior to the appellee, had operated it for a long time without being injured, but whether with the lower rubber of the file plate packed so high, does not appear, and it also appears that the appellee had been operating the ma*474chine for several hours prior to the time he was injured.
Filed June 11, 1896.The appellee’s own testimony' shows that he is an experienced operator of file-grinding machines, and had been working in appellant’s factory for some timé prior to the time he was injured, on a machine similar in construction to the one he was operating when injured. He does not stand in the position of an inexperienced person, set to work with a machine, of the workings of which he knew nothing, and of the dangers in operating which he had no knowledge, but he must be dealt with in the light of the fact that he was experienced in the work, knew of the usual dangers, and, as shown by the evidence, knew that every workman packed his own machine to suit himself. In fact, the evidence in this case shows, although no mention was made of it in the original opinion, that the appellee’s knowledge of such machinery, and his opportunities for obtaining and knowing its operation and dangers, made him by far more competent to know whether it was in proper working order than almost any other person in appellant’s employ, except, perhaps, the person who had previously operated it. From the evidence, the inference could properly have been drawn that the appellee’s opportunity of seeing and knowing of the condition of the machine were equal to, if not better than appellant’s. It might be added, that the evidence on this question is not only uncontradicted, but apparently conclusive. From what we have already said, it is probably better that we extend this opinion no further, inasmuch as the appellee may desire to retry his case in the court bel ow.
The petition 'is overruled.