[569]*569Opinion by
Mr. Chief Justice McBride.
1. It is contended that the evidence offered by plaintiff does not correspond to the allegation of damages in his complaint, and is insufficient to bring the injury shown within the purview of the statute. The allegation, in substance, is: First, that plaintiff was engaged in filling siphon bottles; and, second that he was injured by the explosion of one of the bottles then being filled. The evidence tended to show that plaintiff was engaged in filling at a machine used for that purpose, that as fast as the bottles were filled they were placed on a tray by the side of the machine, and that it was the duty of plaintiff when the tray had been filled to put the labels upon the bottles and take them to another place and put them away upon a shelf. In pursuance of this practice he had just filled the bottle in question and placed it upon the tray and was starting to fill another bottle, when the bottle last filled blew up, causing the injury. The variance alleged is merely technical, and could not have misled the defendants on the trial. Plaintiff’s work upon the bottle was not complete. It was still in his immediate vicinity and under his control, and whether it exploded while in the process of being filled or a few seconds after is not material. Section 97, L. O. L., provides:
“No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. ’ ’
It is very evident that defendant was not prejudiced by the variance, if indeed it should be called such. At the close of the case the court allowed the pleading to be corrected to conform to the evidence in the respects mentioned above.
[570]*5702. The defendant also predicates error upon the court’s refusal to give the following instruction:
“If you find from the evidence that the injury which plaintiff suffered was an unavoidable accident under the circumstances of this case, or that the. accident could not have been prevented by the exercise of reasonable care upon the part of the defendant, then your verdict should be for defendant.”
The particular vice of this instruction is the introduction of the words “under the circumstances of this case.” The circumstances were that the plaintiff requested defendant to procure him á mask and gloves, which defendant failed to do, and that in working without them he was injured. Under these conditions the injury was unavoidable. It would have been unavoidable irrespective of whether or not defendant was negligent. The instruction was one tending to mislead the jury, and was properly refused. In addition it may be added that this request, so far as applicable, is covered by the general instructions given by the court, which completely and admirably lay down the law. Among other things the court instructed as follows:
“In a case of this kind, negligence is not presumed from the mere fact that an accident happened, or that a party may have been injured. On the contrary, the law presumes that both plaintiff and defendant exercised due care, and the party who attempts to establish negligence on the part of either must establish it by a preponderance of the evidence. The only negligence for which the defendant would be liable in this case is the negligence set forth in the complaint. So that in this case, if you should find that the defendant is guilty of negligence, which is not alleged in the complaint, it is not liable for such negligence so not alleged, even if you should find it was the proximate cause of the injury, and the reason is that the defendant re[571]*571ceived its notice of the particular charges of negligence from the pleadings, and as those are the only charges set up, those are the only charges that it is called upon to refute; and the particular charge, as I have before indicated, is a charge of failing to provide the plaintiff with regulation mask and gloves. Negligence is the failure to do something that a person' of reasonable care and prudence would have done, or the doing of something that a person of reasonable care and prudence would not have done under the circumstances. It is the want of due care in the particular situation. Due care and negligence are relative terms, and what in one situation might be due care , might be negligence in another; and the measure of duty always is reasonable care and caution upon the part of an employer for the safety of his employees. And that care should be proportioned always to the dangers reasonably to be apprehended from the employment in which the servant is engaged. * * When you come to consider this case your first inquiry will be whether this was a dangerous employment, one involving danger to the servant engaged in it. * * Then your next inquiry will be whether the providing of regulation gloves and mask is a practical provision in the employment in which the plaintiff was engaged. Whether it is practical to use them, and whether the use of them will or will not impair the efficiency of the servant. And a further question, of course, for you to determine would be whether if he had been provided with these appliances that would have protected him against the injury which he received.”
These instructions clearly excluded any recovery on account of any injury except that arising from defendant’s alleged negligent failure to furnish a mask and gloves, and necessarily excluded any recovery on account of any accident, unavoidable or otherwise, not occasioned by such negligence.
3-5. The injury that defendant received consisfed, among other things, in the severing or wounding of [572]*572a tendon of Ms hand by a piece of broken glass. He testified that after laying off for several days he returned to work, but that he could not work without pain, and that the tendon broke one night while he was asleep, causing additional pain and suffering. Whether the second lesion was the result of his returning to work before he had completely recovered from the original injury is problematical under the circumstances detailed and was left by the court to the jury. In this connection defendant’s counsel requested the following instructions:
“Evidence has been offered tending to prove that some five weeks after the accident plaintiff, while in bed, suffered a second injury to his hand, but no evidence has been offered to prove that his second injury resulted from or was in any way traceable to the first. You cannot therefore allow any damages on account of such second injury occurring to plaintiff, but must allow him only compensation for the first injury.”
The refusal of the court to give the above is assigned as error. The instruction assumed as a fact what was at least disputable, namely, that there was no evidence tending to prove that the later lesion was referable to the. original injury, whereas it might reasonably have been inferred from the circumstances themselves, and in fact, nobody reading all the testimony would reasonably conclude otherwise. Whether the fact that plaintiff’s resuming work when he did aggravated the original injury to the extent of bringing about the breaking of the tendon was a question of fact for the jury. The testimony of Dr. Fenton, one of defendant’s witnesses, confirms the view we have taken of this feature of the case. Being asked to account for defendant’s statement that pus had [573]
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[569]*569Opinion by
Mr. Chief Justice McBride.
1. It is contended that the evidence offered by plaintiff does not correspond to the allegation of damages in his complaint, and is insufficient to bring the injury shown within the purview of the statute. The allegation, in substance, is: First, that plaintiff was engaged in filling siphon bottles; and, second that he was injured by the explosion of one of the bottles then being filled. The evidence tended to show that plaintiff was engaged in filling at a machine used for that purpose, that as fast as the bottles were filled they were placed on a tray by the side of the machine, and that it was the duty of plaintiff when the tray had been filled to put the labels upon the bottles and take them to another place and put them away upon a shelf. In pursuance of this practice he had just filled the bottle in question and placed it upon the tray and was starting to fill another bottle, when the bottle last filled blew up, causing the injury. The variance alleged is merely technical, and could not have misled the defendants on the trial. Plaintiff’s work upon the bottle was not complete. It was still in his immediate vicinity and under his control, and whether it exploded while in the process of being filled or a few seconds after is not material. Section 97, L. O. L., provides:
“No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. ’ ’
It is very evident that defendant was not prejudiced by the variance, if indeed it should be called such. At the close of the case the court allowed the pleading to be corrected to conform to the evidence in the respects mentioned above.
[570]*5702. The defendant also predicates error upon the court’s refusal to give the following instruction:
“If you find from the evidence that the injury which plaintiff suffered was an unavoidable accident under the circumstances of this case, or that the. accident could not have been prevented by the exercise of reasonable care upon the part of the defendant, then your verdict should be for defendant.”
The particular vice of this instruction is the introduction of the words “under the circumstances of this case.” The circumstances were that the plaintiff requested defendant to procure him á mask and gloves, which defendant failed to do, and that in working without them he was injured. Under these conditions the injury was unavoidable. It would have been unavoidable irrespective of whether or not defendant was negligent. The instruction was one tending to mislead the jury, and was properly refused. In addition it may be added that this request, so far as applicable, is covered by the general instructions given by the court, which completely and admirably lay down the law. Among other things the court instructed as follows:
“In a case of this kind, negligence is not presumed from the mere fact that an accident happened, or that a party may have been injured. On the contrary, the law presumes that both plaintiff and defendant exercised due care, and the party who attempts to establish negligence on the part of either must establish it by a preponderance of the evidence. The only negligence for which the defendant would be liable in this case is the negligence set forth in the complaint. So that in this case, if you should find that the defendant is guilty of negligence, which is not alleged in the complaint, it is not liable for such negligence so not alleged, even if you should find it was the proximate cause of the injury, and the reason is that the defendant re[571]*571ceived its notice of the particular charges of negligence from the pleadings, and as those are the only charges set up, those are the only charges that it is called upon to refute; and the particular charge, as I have before indicated, is a charge of failing to provide the plaintiff with regulation mask and gloves. Negligence is the failure to do something that a person' of reasonable care and prudence would have done, or the doing of something that a person of reasonable care and prudence would not have done under the circumstances. It is the want of due care in the particular situation. Due care and negligence are relative terms, and what in one situation might be due care , might be negligence in another; and the measure of duty always is reasonable care and caution upon the part of an employer for the safety of his employees. And that care should be proportioned always to the dangers reasonably to be apprehended from the employment in which the servant is engaged. * * When you come to consider this case your first inquiry will be whether this was a dangerous employment, one involving danger to the servant engaged in it. * * Then your next inquiry will be whether the providing of regulation gloves and mask is a practical provision in the employment in which the plaintiff was engaged. Whether it is practical to use them, and whether the use of them will or will not impair the efficiency of the servant. And a further question, of course, for you to determine would be whether if he had been provided with these appliances that would have protected him against the injury which he received.”
These instructions clearly excluded any recovery on account of any injury except that arising from defendant’s alleged negligent failure to furnish a mask and gloves, and necessarily excluded any recovery on account of any accident, unavoidable or otherwise, not occasioned by such negligence.
3-5. The injury that defendant received consisfed, among other things, in the severing or wounding of [572]*572a tendon of Ms hand by a piece of broken glass. He testified that after laying off for several days he returned to work, but that he could not work without pain, and that the tendon broke one night while he was asleep, causing additional pain and suffering. Whether the second lesion was the result of his returning to work before he had completely recovered from the original injury is problematical under the circumstances detailed and was left by the court to the jury. In this connection defendant’s counsel requested the following instructions:
“Evidence has been offered tending to prove that some five weeks after the accident plaintiff, while in bed, suffered a second injury to his hand, but no evidence has been offered to prove that his second injury resulted from or was in any way traceable to the first. You cannot therefore allow any damages on account of such second injury occurring to plaintiff, but must allow him only compensation for the first injury.”
The refusal of the court to give the above is assigned as error. The instruction assumed as a fact what was at least disputable, namely, that there was no evidence tending to prove that the later lesion was referable to the. original injury, whereas it might reasonably have been inferred from the circumstances themselves, and in fact, nobody reading all the testimony would reasonably conclude otherwise. Whether the fact that plaintiff’s resuming work when he did aggravated the original injury to the extent of bringing about the breaking of the tendon was a question of fact for the jury. The testimony of Dr. Fenton, one of defendant’s witnesses, confirms the view we have taken of this feature of the case. Being asked to account for defendant’s statement that pus had [573]*573gathered from time to time at the point of the injury, he answered:
“At the time of the injury, judging—if I may not state the cause of the injury, which was a piece of glass—glass is inclined to produce an inflammation, pus in formation. Usually it makes a jagged wound, and in healing, if the external wound was closed, there is a possibility of some pus formation beneath; according to his own statement it did form a pocket there. Then subsequently did not unite, evidently the tissues broke down, and the tendons separated and a second operation was done, cutting along the line of the tendons in order to gather it up and bring the two ends together. This was united probably with a kangaroo tendon or with some ligature of endurance, something that would hold the tendon in a position for 10 or 20 days, and from the statement given, I judge that this ligature as it absorbed suppurated slightly so that pus escaped the second time. However, it was not sufficient to prevent the union of the tendons. The tendon has united, but it has thickened quite considerably to what it was in the original state.”
Upon this matter the court instructed the jury as follows:
“Gentlemen, the injury complained of in this case is an injury to the back of the hand, which is alleged to have cut one of the tendons of the hand, and in case you should find for the plaintiff in this case, you should take up, of course, the question of injury (and injury to the face, of course, also). That injury to the hand as charged here in the complaint was the injury received on the 5th of July, 1912. Now, I think there has been some evidence in the case that a later injury has been received somewhere about the wrist.
“Mr. Burnett: Earlier.
“Mr. Reilly: The second injury was the snapping of the tendon while in bed.
“The Court: Oh, yes. Well, now, gentlemen, upon that question, if you should find for the plaintiff, you should allow him such sum as will compensate him, [574]*574in yonr opinion, for the injury he has received, and the .injury will be the accident itself, and the direct and natural consequences of it, apart from any other intervening cause, such as happened at the time, and' such as naturally and directly result from the cutting of the hand, whatever you might find that to be. I say, in case you find for the plaintiff, you will award him such sum as in your judgment will compensate him for the injury he has received, and fpr such disability as you find he has sustained by reason of such injury. ’ ’
This put the matter fairly before the jury both as to plaintiff’s right of recovery and the measure of his damages.
6. Defendant’s counsel also assigns as error the refusal of the court to give the following instruction:
“The servant assumes the dangers of the employment to which he voluntarily and intelligently consents, and while ordinarily he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such precautions. If, therefore, you find from the evidence that the work in which plaintiff was engaged was more dangerous without the use of gloves, and that plaintiff knew that fact and continued working without gloves in spite of such knowledge, then plaintiff must be held to have assumed the risk attached to such work, and your verdict should be for the defendant.”
This instruction would have been good in a common-law action for negligent injury, but it has no application to actions brought under the Employer’s Liability Act when assumption of risk by the servant is not a defense: Hill v. Saugested, 53 Or. 178 (98 Pac. 524, 22 L. R. A. (N. S.) 634); Love v. Chambers Lumber Co., [575]*57564 Or. 129 (129 Pac. 492); Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351).
7. It is also claimed that the testimony shows that the nse of gloves and mask is not practicable in filling siphon bottles, and that, therefore, the plaintiff has not brought himself within the terms of the Employer’s Liability Act. The testimony on this point is conflicting. The plaintiff, who had two years’ experience in bottling, thought the use of them practical, and requested Mr. Robinson, defendant’s manager, to furnish them. At the time the request was made Mr. Robinson evidently thought their use practical, because he promised to procure them. Mr. Crane, plaintiff’s witness, thinks them practical, though he admits that they may render the process of bottling somewhat slower, and says that many, and in fact a majority of, bottlers refuse to use them for that reason. "Witnesses for defendant go further than this, and say in effect that their use is impracticable. So there was evidence to go to the jury in support of plaintiff’s theory, and as frequently announced, we will not disturb the verdict of a jury where there is any substantial evidence to support it. In cases of contradictory testimony the jury and not the court is the judge of its value and effect.
The judgment of the Circuit Court is affirmed.
Affirmed.
Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.