TimxiN, J.
At the threshold of this inquiry some doubt is suggested with reference to what statutes apply to the case, although appellant contends that under either statute it was entitled to a directed verdict. It is argued that sec. 1636/, Stats., as amended by ch. 470, Laws of 1911, approved June 28, 1911, published June 29, 1911, was repealed by implication by ch. 485, Laws of 1911, approved and published June 30, 1911. Repeals by implication are not favored. Where there is nothing inconsistent or conflicting in the statutes in question there is no repeal by implication. Att’y Gen. ex rel. Taylor v. Brown, 1 Wis. 513. Sec. 1636j has been construed as not requiring such fencing or guarding as would prevent the practical operation of the machine. Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839; Monaghan v. Northwestern F. Co. 140 Wis. 457, 122 N. W. 1066; Willette v. Rhinelander P. Co. 145 Wis. 537, 555, 130 N. W. 853; Adams v. Menasha P. Co. 154 Wis. 577, 583, 143 N. W. 658; Montevilla v. Northern F. Co. 153 Wis. 292, 295, 141 N. W. 279. The two cases first above cited are somewhat criticised in Willette v. Rhinelander P. Co., supra, but that opinion must be read with reference to the statute as it then existed and with reference to the particular appliance there under consideration. In Willette v. Rhinelander P. Co., supra, it is also said: “Of course, a machine must be kept sufficiently open so the work can practicably be done for which it was designed. . . . Otherwise operations by machinery would be practicably impossible.” Page 555.
Premising that under the statute as it read when this injury occurred the duty to guard or protect is absolute; and that the exercise of ordinary care on the part of the employer cannot be deemed a compliance with such absolute duty, yet [271]*271tlie statute is not to be construed to require the performance of that which is impossible. A mandate to guard, fence, or protect an appliance in use assumes the continued use of that appliance. The imposition of an absolute duty to guard is not the same as the imposition of a duty to guard absolutely. If it be said that the employer must, in order to comply with this statute, wholly discard any appliance of the class mentioned which cannot be securely guarded or fenced, or that he must forego their use altogether, that is, we think, deriving from the statute a consequence not contemplated. The statute, sec. 1636;, contemplates the continued use of the described appliance, but of course guarded, fenced, or protected. It therefore means that the appliances shall be guarded or fenced as safely and securely as is possible consistent with the continued practical use of such appliances. This does not mean that the employer may insist on some particular form or style of machine, which particular form or style it is impossible to guard, when machines of a similar nature and capable of efficiently performing the same function may be had which it is perfectly feasible to guard; but (for illustration) the employer is not obliged to discontinue the use of circular saws because it might be impossible to place a stationary guard over the cutting edge thereof, although it might be his duty, when practical, to adopt as a guard the ordinary disappearing saw. In other words, the duty to guard might carry with it the duty to change the setting or frame of the saw so as to make a guard possible and practicable. In Besnys v. Herman Zohrlaut L. Co., ante, p. 203, 147 N. W. 37, the appliance could be guarded and still be operated. Mere difficulty, or inconvenience, or impracticability falling short of preventing the practical operation of the machine, is not sufficient excuse for failure to comply with the statutory duty. Willette v. Rhinelander P. Co. 145 Wis. 537, 130 N. W. 853.
Oh. 485, Laws of 1911 (secs. 2394 — 41 to 2394 — 71, Stats.), requires the employer to furnish to his employees a [272]*272place of employment as free from danger as the nature of the employment will reasonably permit. This is not contradictory of or in conflict with sec. 1686j as construed by this court, and, applying ch. 485, supra, the industrial commission made a general order to the effect that all circular saws must be guarded, etc., except while specific work is being done, where it is impossible to do the work when the saw'is guarded. There is therefore no inconsistency between these statutes; one is specific and the other is general, but covering cases which might come under both with like effect so far as the instant case is affected. Whether ch. 485, supra, has in some other aspects a broader scope need not be decided. Whether it is possible to cover a saw so as not to interfere with its practical operation and at the same time so as to prevent the . injury sustained, must in most cases be a question of fact. In the instant case appellant’s counsel argues that the impossibility of so doing is apparent, while respondent’s counsel in argument proposes, an ingenious plan of guarding which he considers perfectly feasible. The' fact that respondent’s counsel felt it necessary to make such argument is a subconscious impeachment of the judgment he is endeavoring to support. Expert investigation might weaken or destroy either claim. Unless the defendant failed in its duty to guard the saw in question, no negligent act or omission creating liability for this injury appears. It seems quite manifest that the judgment appealed from cannot be supported because of the ruling excluding the testimony of the witness Haems and because of the given instruction quoted and the requested instruction quoted and denied, unless we are prepared to say it appears clearly that the saw could have been guarded or protected without preventing its practical use, and therefore these rulings were not prejudicial. We are not prepared to say this. Neither could we uphold the request to direct a verdict for defendant unless it appeared clearly that the saw could not have been guarded or protected without preventing [273]*273its practical use. Neither of these conditions is conclusively established.
The questions for trial on this point were: (1) whether the saw was so located as to be dangerous to employees in the discharge of their duty; (2) whether it was securely guarded or fenced, considering the form of the carriage, the exposure or nonexposure of the saw, and the covering position of the chair hack; (3) whether it was possible to further guard or fence the saw as to prevent injuries similar to that received by plaintiff without at the same time preventing the practical operations of the saw. There was therefore error in excluding the testimony of the witness Kaems, in giving the quoted instruction, and in the refusal to give the requested quoted instruction. The ruling excluding the testimony of the witnesses Wolff and Van de Loo rests upon a different ground. The testimony sought to he elicited from these witnesses went not to the impossibility of furnishing a guard or protection which would permit the saw to he used and at the same time protect the plaintiff, but to the question of defendant’s negligence in not furnishing a guard. This last is a defense barred by the statute in force governing this case, and the exclusion of this testimony must be upheld.
With reference to the alleged contributory negligence of the plaintiff, it must be borne in mind that the assumption of risk is by statute eliminated and that the burden of proof is upon the defendant to establish contributory negligence.
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TimxiN, J.
At the threshold of this inquiry some doubt is suggested with reference to what statutes apply to the case, although appellant contends that under either statute it was entitled to a directed verdict. It is argued that sec. 1636/, Stats., as amended by ch. 470, Laws of 1911, approved June 28, 1911, published June 29, 1911, was repealed by implication by ch. 485, Laws of 1911, approved and published June 30, 1911. Repeals by implication are not favored. Where there is nothing inconsistent or conflicting in the statutes in question there is no repeal by implication. Att’y Gen. ex rel. Taylor v. Brown, 1 Wis. 513. Sec. 1636j has been construed as not requiring such fencing or guarding as would prevent the practical operation of the machine. Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839; Monaghan v. Northwestern F. Co. 140 Wis. 457, 122 N. W. 1066; Willette v. Rhinelander P. Co. 145 Wis. 537, 555, 130 N. W. 853; Adams v. Menasha P. Co. 154 Wis. 577, 583, 143 N. W. 658; Montevilla v. Northern F. Co. 153 Wis. 292, 295, 141 N. W. 279. The two cases first above cited are somewhat criticised in Willette v. Rhinelander P. Co., supra, but that opinion must be read with reference to the statute as it then existed and with reference to the particular appliance there under consideration. In Willette v. Rhinelander P. Co., supra, it is also said: “Of course, a machine must be kept sufficiently open so the work can practicably be done for which it was designed. . . . Otherwise operations by machinery would be practicably impossible.” Page 555.
Premising that under the statute as it read when this injury occurred the duty to guard or protect is absolute; and that the exercise of ordinary care on the part of the employer cannot be deemed a compliance with such absolute duty, yet [271]*271tlie statute is not to be construed to require the performance of that which is impossible. A mandate to guard, fence, or protect an appliance in use assumes the continued use of that appliance. The imposition of an absolute duty to guard is not the same as the imposition of a duty to guard absolutely. If it be said that the employer must, in order to comply with this statute, wholly discard any appliance of the class mentioned which cannot be securely guarded or fenced, or that he must forego their use altogether, that is, we think, deriving from the statute a consequence not contemplated. The statute, sec. 1636;, contemplates the continued use of the described appliance, but of course guarded, fenced, or protected. It therefore means that the appliances shall be guarded or fenced as safely and securely as is possible consistent with the continued practical use of such appliances. This does not mean that the employer may insist on some particular form or style of machine, which particular form or style it is impossible to guard, when machines of a similar nature and capable of efficiently performing the same function may be had which it is perfectly feasible to guard; but (for illustration) the employer is not obliged to discontinue the use of circular saws because it might be impossible to place a stationary guard over the cutting edge thereof, although it might be his duty, when practical, to adopt as a guard the ordinary disappearing saw. In other words, the duty to guard might carry with it the duty to change the setting or frame of the saw so as to make a guard possible and practicable. In Besnys v. Herman Zohrlaut L. Co., ante, p. 203, 147 N. W. 37, the appliance could be guarded and still be operated. Mere difficulty, or inconvenience, or impracticability falling short of preventing the practical operation of the machine, is not sufficient excuse for failure to comply with the statutory duty. Willette v. Rhinelander P. Co. 145 Wis. 537, 130 N. W. 853.
Oh. 485, Laws of 1911 (secs. 2394 — 41 to 2394 — 71, Stats.), requires the employer to furnish to his employees a [272]*272place of employment as free from danger as the nature of the employment will reasonably permit. This is not contradictory of or in conflict with sec. 1686j as construed by this court, and, applying ch. 485, supra, the industrial commission made a general order to the effect that all circular saws must be guarded, etc., except while specific work is being done, where it is impossible to do the work when the saw'is guarded. There is therefore no inconsistency between these statutes; one is specific and the other is general, but covering cases which might come under both with like effect so far as the instant case is affected. Whether ch. 485, supra, has in some other aspects a broader scope need not be decided. Whether it is possible to cover a saw so as not to interfere with its practical operation and at the same time so as to prevent the . injury sustained, must in most cases be a question of fact. In the instant case appellant’s counsel argues that the impossibility of so doing is apparent, while respondent’s counsel in argument proposes, an ingenious plan of guarding which he considers perfectly feasible. The' fact that respondent’s counsel felt it necessary to make such argument is a subconscious impeachment of the judgment he is endeavoring to support. Expert investigation might weaken or destroy either claim. Unless the defendant failed in its duty to guard the saw in question, no negligent act or omission creating liability for this injury appears. It seems quite manifest that the judgment appealed from cannot be supported because of the ruling excluding the testimony of the witness Haems and because of the given instruction quoted and the requested instruction quoted and denied, unless we are prepared to say it appears clearly that the saw could have been guarded or protected without preventing its practical use, and therefore these rulings were not prejudicial. We are not prepared to say this. Neither could we uphold the request to direct a verdict for defendant unless it appeared clearly that the saw could not have been guarded or protected without preventing [273]*273its practical use. Neither of these conditions is conclusively established.
The questions for trial on this point were: (1) whether the saw was so located as to be dangerous to employees in the discharge of their duty; (2) whether it was securely guarded or fenced, considering the form of the carriage, the exposure or nonexposure of the saw, and the covering position of the chair hack; (3) whether it was possible to further guard or fence the saw as to prevent injuries similar to that received by plaintiff without at the same time preventing the practical operations of the saw. There was therefore error in excluding the testimony of the witness Kaems, in giving the quoted instruction, and in the refusal to give the requested quoted instruction. The ruling excluding the testimony of the witnesses Wolff and Van de Loo rests upon a different ground. The testimony sought to he elicited from these witnesses went not to the impossibility of furnishing a guard or protection which would permit the saw to he used and at the same time protect the plaintiff, but to the question of defendant’s negligence in not furnishing a guard. This last is a defense barred by the statute in force governing this case, and the exclusion of this testimony must be upheld.
With reference to the alleged contributory negligence of the plaintiff, it must be borne in mind that the assumption of risk is by statute eliminated and that the burden of proof is upon the defendant to establish contributory negligence. What act, fact, or circumstance constituted contributory negligence in the instant ease is quite difficult to specify. The argument of appellant’s counsel on this point is not very explicit. As we understand it;, he assumes on this point that the accident occurred as claimed by the plaintiff. This, for obvious reasons, he must do as a basis for such argument by which he assumes to raise a question of law. Second, that the plaintiff admitted to others that the accident was due to having dropped the chair back while in the act of turning [274]*274around to place it in the finished pile and that he involuntarily grabbed for it, and so got his hand on the top of the saw. This last is not the testimony of the plaintiff, and this is not shown by uncontroverted evidence. The testimony of the plaintiff tends to show that in drawing back the carriage,, with his right hand grasping the handle forming the end of the lever in question, the lever escaped from the ratchet post. He says:
“When I pulled him back and I pulled the carriage back as far as the back touched the saw, then the handle came open, the lever came open and my hand flew on the side and into the saw. The lever flew open upward, I can’t say how far, but flew upward and threw my hand upward on the side and my hand flew in the saw, the right hand.”
We find nothing incredible or impossible in this statement. The probability of such accidents happening no doubt gave rise to the requirement that a circular saw should be guarded or fenced.
By the Court. — Judgment reversed, and cause remanded for a new trial.