the shaft frequently, sometimes every week and sometimes every day, when they were lifting heavy loads. The key used was smaller than the key-way, and a piece of tin was hammered into the opening but did not prevent the pinion working on the shaft. After the accident it was found to have worked along on the shaft so far that it cleared the wheel with which it was designed to mesh, and as a consequence the drum around which the cable wound was not held or controlled by the machinery which operated it and the friction levers for holding the weight were ineffective. The cable around the drum was found uncoiled and lying around the shed. John Stulski, who was in charge of the machinery at the time of the accident, testified as to the manner in which it happened, as follows: "When he (the deceased) gave the signal I took the lever and pulled with the brake and started to lower. The pinion slipped and the drum started to go. The drum unwound and let the cable unwind. I looked at the pinion at ten o'clock in the forenoon. I put the oil on the boxes and everything was all right. After the accident I looked at the pinion. The little pinion was against the wall this way (indicating) to the west. It come out from the big wheel,-disengaged it on the side. The big wheel is working with the drum,—is going around with the drum,—and the pinion slipped off and it stopped. The little one slipped off the big one, so that it didn't touch. The little pinion was just over at the side of the big wheel." The appellant insists that it was the failure of John Stulski, a fellow-servant of the deceased, to apply the brake and control the weight which caused the accident, and evidence was introduced tending to show that it was impossible for the pinion to have worked over on the shaft and let the weight fall, and that the machinery and appliances were of a kind in common and general use for such work and were reasonably safe for the purpose. The plaintiff's evidence tended to support his cause of action. Whether it was met and overcome by that of the defendant was a question depending upon a consideration of the evidence, and therefore the court properly refused to direct the jury to find a verdict for the defendant so far as the question of defendant's negligence was concerned. This is true also of the question of the deceased's care. Stulski testified that deceased, at the time he gave the signal to lower, stood the same way he always stood. There was evidence as to his position at the time, and that he stood ready to take hold of the plate and steady it when it came down. There was evidence that he had been warned not to stand under the plate. There was evidence tending to show contradictory statements of the witness who testified most directly that the deceased stood under the plate, and on the whole evidence, as to the deceased's conduct at the time, it was a question for the jury as to whether or not he was in the exercise of ordinary care for his own safety, under the circumstances. The substance of instruction 39 is, that if the deceased was warned of the danger of standing under the plate the jury should find the defendant not guilty. It was properly refused. Everything in instructions 35 and 38 to which appellant was entitled is contained in instructions 18 and 22 which were given. No complaint is made as to the other instructions. The judgment of the Appellate Court will be affirmed. INDEX. ABSTRACTS OF TITLE. objection to item in abstract of title is not waived by as- ACTIONS AND DEFENSES. .... the legal execution of insured for crime committed by him ... PAGE. 594 594 594 594 37 33 37 plea of res judicata is defective which fails to show a final 89 89 a suit to recover a penalty for violation of an ordinance is 112 when both defendants to injunction bill should join in suit 123 ... 123 an equitable title is sufficient to enable the holder to main- 142 175 when decree in a foreclosure case is no defense to a judg- .... ACTIONS AND DEFENSES.-Continued. what is not, of itself, a sufficient description of premises PAGE. .... 197 bill to contest a will cannot include a prayer for specific .... when certiorari is a proper remedy for obtaining a review what is not adverse possession as against railroad..... 197 215 224 224 261 .... 232 tions on contracts, express or implied, covers action for .... 327 ... 331 when right of heirs to partition is not barred by possession. 331 when tenant cannot recover for injury to crops for period 361 fellow-servant rule may be invoked only by the common 378 defendant to bill for specific performance cannot take ad- 488 when party having beneficial interest in contract may main- 488 in suit to recover a penalty for obstructing highway, the 511 ACTIONS AND DEFENSES.-Continued. PAGE. when improper use of premises may be enjoined without 534 equity will not enforce an unconscionable contract... 595 622 AND ADMINIS- ADMINISTRATION.-See EXECUTORS TRATORS. ADVERSE POSSESSION.-See LIMITATIONS. AFFIDAVITS. defendants in suit on injunction bond must file affidavit of AGENCY.-See PRINCIPAL AND AGENT. AMENDMENTS. .... 123 mistakes of the clerk in writing the record may be cor- ANCIENT DOCUMENTS. when defect in abstract of title is not aided by rule of evi- APPEALS AND ERRORS. .... 594 595 49 argument based upon the evidence is not improper... what findings in decree are not sufficient to sustain it where 120 120 |