(dissenting). I cannot concur in the foregoing opinion, so far as it holds that it conclusively appears that plaintiff fully knew and appreciated, or, in the exercise of ordinary care, should have known and appreciated, the risks incident to the work in which he was injured. All of the conditions were obvious to a person of ordinary intelligence, except the condition of the floor, and the soles of his shoes when he was bracing himself in the act of turning the lever. There might, and ordinarily would be, sand, dirt, or grit on the floor, and also on the soles of his shoes. This would cause his feet to stick to the floor when pulling on the lever, whether the floor was wet or dry. The constant throwing of water on the floor during this spell of high water would naturally tend to wash off this sand, dirt, and grit, make the floor soft and slippery, and the soles of his shoes might happen to be more clean and free from grit than at other *123times. These are changes in the condition of things which he might not know or appreciate. It does not appear by the evidence that he ever operated this lever before when the water was high, or when it had been thrown on the floor by the action of the wheel, or that he had ever slipped before when operating it. He was not a skilled mechanic, and should not be expected to exercise all the skill and forethought of one, or of a person of sufficient skill, experience, and capacity to build, have charge of, or operate the mill. While the defense of the assumption of the risk by the servant is well established in the law, it should not be favored. It too often puts the courts in the position of holding that, the more dangerous the master’s premises or appliances, the less risks he runs. If they are so dangerous that any one ought to know the dangerous character, the master runs no risk, incurs no liability, at all. The greater his moral duty, the less his legal duty. The burden is on the defendant to establish the defense of assumption of risk. Unless it appears by the evidence on plaintiff’s side of the case that he both knew and appreciated the risk, the burden is on defendant to prove that he did. It seems to me that it does not so conclusively appear in this case as to make it a question for the court. It is a question for the jury, and the order appealed from should be affirmed.
(Opinion published 60 N. W. 1093.)
Petition for reargument denied Dec. 4, 1894.