¶1 The plaintiff, who sues by her next friend, was a girl 13 years of age at the time of the injury, whose hand was mashed in the rollers of a mangle in a steam laundry, necessitating the amputation of the fingers of the hand. It was in evidence that the defendant had admitted that the accident was caused by the guard having been taken off, and that he knew it was off that morning when the girl went to work.
¶2 At the close of the evidence, the defendant demurred under the Act of 1897, Chapter 109, “on the ground that the plaintiff’s testimony showed she had been guilty of contributory negligence in working at the machine for five days, with knowledge of the absence of the guard, and of the dangerous condition of the machinery.” The court sustained the demurrer, and in this there was error.
¶3 The burden of contributory negligence was on the defendant, and while the court can hold that a party, on whom rests the burden of proof, has failed to offer evidence to sustain it. it cannot adjudge that he has proved his case, for when there is evidence the jury alone can pass upon its truth. Ice Manufacturing Company v. Railroad, and several other cases at this term.
¶4*682 Besides, the girl’s evidence did not prove her guilty of contributory negligence. She said she thought this machine more dangerous than a former one she had worked at which had a guard, but that nobody had explained the machine to her, and she did not know that the guai’d was necessary, nor that this machine h^d ever had a guard, and that she had to put her fingers close up to the rollers to get the linen in. it is not to be held as a matter of law that operatives must decline to work at machines which may be lacking in some of the improvements or safeguards they have seen upon other machines, under peualty of losing all claim for damages from defective machinery. It is the employer, not the employee, who should be fixed with knowledge of defective appliances and held liable for injuries resulting from their use. It is only where a machine is so grossly or clearly defective that the employee must know of the extra risk that he can be deemed to have voluntarily and knowingly assumed the risk. Where the line is to be drawn must depend largely upon the circumstances of each case, but they must be such as to show that the employee had full knowledge of the unusual risk and deliberately assumed it. Such a state of facts was not conclusively shown by the plaintiff’s evidence in this case. If such inference could be drawn from it. it was in the province of the jury, not of the Court, to draw it.
¶5 New trial.