Opinion by
Mr. Chief Justice McBride.
Many of the facts above stated are strongly contradicted by testimony introduced by defendant, but we are not the judges of the weight of testimony.
1. Where there is evidence to support a verdict, and the facts have been submitted to a jury under proper instructions, we are precluded from disturbing such verdict. Article VII, Section 3, of the constitution as amended November 8, 1910 (Laws 1911, p. 7) ; Wills v. Palmer Lumber Co., 58 Or. 536 (115 Pac. 417); Purdy v. Van Keuren, 60 Or. 263 (119 Pac. 149).
[134]*1342. The testimony of plaintiff’s witnesses indicates that the plaintiff’s duties in the course of his employment required him to cross the shaft, and that this was his usual and the most practical route to the place where he was compelled to go to throw off the belt. Crossing the shaft was, therefore, an act incidental to the work in which he was engaged, and it was the duty of defendant to have so guarded it as to have so far as practicable protected him from danger.
3. The contention that plaintiff assumed the risk incident to the unguarded condition of the machinery cannot be sustained. This court has already held that in actions under the factory act assumption of risk is not a defense. Hill v. Saugested, 53 Or. 178 (98 Pac. 524: 22 L. R. A. [N. S.] 634); Erickson v. McNeeley & Co., 41 Wash. 509 (84 Pac. 4). It was therefore not error for the court to refuse to instruct the jury that the employe assumes the open and visible risks of his employment. While it may be true, as stated in Byrne v. Nye & Wait Carpet Company, 46 App. Div. 479 (61 N. Y. Supp. 741), that the employer is not required to guard machinery situated remotely from the place where the employe is at work,'and where the employer would not reasonably anticipate that he would go, no such conditions appear in this case. The evidence rather tends to indicate that defendant’s manager ought reasonably to have anticipated that plaintiff would go where he actually went; and would probably take the route that he did take.
4. An exception was taken to the admission of evidence showing that a guard or boxing had been placed over the machinery subsequent to the injury to plaintiff. Where such testimony is offered for the purpose of showing negligence at the time of the accident, it is clearly inadmissible. Columbia & Puget Sound R. Co. v. Hawthorne, 144 U. S. 202 (12 Sup. Ct. 591: 36 L. Ed. 405).
[135]*1355. However, the testimony was not offered nor admitted for such purpose, but for the purpose of showing the practicability of operating the machinery when so guarded. The complaint alleged that it was practicable for defendant to have so guarded the machinery as to have prevented the accident without interfering with its ordinary, use. This was denied in the answer, so it became necessary for plaintiff to establish the proposition that it could be so guarded. No better evidence could have been introduced for this purpose than to show that after the accident the machinery had been so guarded, and that such safeguards had not in any way impeded or interfered with its operation. Erickson v. McNeeley Co., 41 Wash. 509 (84 Pac. 4).
6. Defendant requested the following instruction, which was refused:
“If you find from the evidence in this case that the plaintiff was injured by performing his duties in a dangerous manner, and that he might have performed them safely in a manner provided by the defendant, the plaintiff would be guilty of contributory negligence and could not recover, notwithstanding the defendant has been remiss in its duty of safeguarding the machinery that caused the injury.”
We think this instruction is sufficiently covered by the general instruction on this point, which was as follows:
“Should you find from the evidence that the way taken by the plaintiff in going to the point in the basement, where the belt was to be adjusted, was the usual ordinary way pursued by plaintiff and other employes, whose duties called upon them to go into the basement and to the place where plaintiff was going, and that said way was not in itself so dangerous that an ordinarily prudent man under the same circumstances and conditions would not have gone the same way, then you are instructed that the plaintiff in adopting such course in going to and from said basement at the time he was injured was not guilty of contributory negligence. However, in this connection as the court has already instructed you, if the [136]*136plaintiff was instructed by the defendant to take a way. different than the one taken by the plaintiff, then, if, notwithstanding such instruction, and notwithstanding another way, safe and open, existed, the plaintiff took the way that he did, then, in that event, the rule would be that the plaintiff would be guilty of contributory negligence, for, by reason of taking the way he did, he sustained the injury. But, in determining whether or not an ordinarily prudent man would have taken the way that plaintiff took, you have a right to take into consideration whether or not such a way was usually and customarily used by employes, if it was so used in going to the place where plaintiff was going to adjust the belt. If there was another safe way, and plaintiff knew it, and notwithstanding such knowledge plaintiff went the way he did, and if the way pursued by plaintiff was dangerous, and plaintiff knew it, and by reason of going said dangerous way plaintiff was injured, then, in that event, defendant would not be liable. In the absence of any instruction upon the part of the defendant, concerning what way to take, the question is, Was the way taken by plaintiff one which an ordinarily prudent person would have taken under the same circumstances? If you find from the evidence in this case that the defendant provided the plaintiff with a safe passageway leading to and from the saw, which it is alleged he was operating, to a point where it was necessary for the plaintiff to go to adjust the belt mentioned in plaintiff’s complaint, and the plaintiff had been instructed to follow said route, and in violation of such instructions chose a different and more dangerous route in going to or coming from said point, and in consequence thereof sustained the injury complained of, he would, in that case, be guilty of such contributory negligence as would preclude a recovery in this case, and it would be your duty to find for the defendant.”
This instruction, however, is predicated upon the assumption that such way, if there was such a way, must have been open. In other words, to be available as a way, it must have been a way that could have been pursued by the plaintiff.
[137]*1377. The defendant requested the following instruction, which was refused:
“If you find from the evidence that the shafting with which the plaintiff came in contact and which caused the injury was so located as to preclude the anticipation of danger therefrom upon the part of the defendant, the failure of the defendant to safeguard the same cannot be regarded as negligence upon the part of the defendant.”
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Opinion by
Mr. Chief Justice McBride.
Many of the facts above stated are strongly contradicted by testimony introduced by defendant, but we are not the judges of the weight of testimony.
1. Where there is evidence to support a verdict, and the facts have been submitted to a jury under proper instructions, we are precluded from disturbing such verdict. Article VII, Section 3, of the constitution as amended November 8, 1910 (Laws 1911, p. 7) ; Wills v. Palmer Lumber Co., 58 Or. 536 (115 Pac. 417); Purdy v. Van Keuren, 60 Or. 263 (119 Pac. 149).
[134]*1342. The testimony of plaintiff’s witnesses indicates that the plaintiff’s duties in the course of his employment required him to cross the shaft, and that this was his usual and the most practical route to the place where he was compelled to go to throw off the belt. Crossing the shaft was, therefore, an act incidental to the work in which he was engaged, and it was the duty of defendant to have so guarded it as to have so far as practicable protected him from danger.
3. The contention that plaintiff assumed the risk incident to the unguarded condition of the machinery cannot be sustained. This court has already held that in actions under the factory act assumption of risk is not a defense. Hill v. Saugested, 53 Or. 178 (98 Pac. 524: 22 L. R. A. [N. S.] 634); Erickson v. McNeeley & Co., 41 Wash. 509 (84 Pac. 4). It was therefore not error for the court to refuse to instruct the jury that the employe assumes the open and visible risks of his employment. While it may be true, as stated in Byrne v. Nye & Wait Carpet Company, 46 App. Div. 479 (61 N. Y. Supp. 741), that the employer is not required to guard machinery situated remotely from the place where the employe is at work,'and where the employer would not reasonably anticipate that he would go, no such conditions appear in this case. The evidence rather tends to indicate that defendant’s manager ought reasonably to have anticipated that plaintiff would go where he actually went; and would probably take the route that he did take.
4. An exception was taken to the admission of evidence showing that a guard or boxing had been placed over the machinery subsequent to the injury to plaintiff. Where such testimony is offered for the purpose of showing negligence at the time of the accident, it is clearly inadmissible. Columbia & Puget Sound R. Co. v. Hawthorne, 144 U. S. 202 (12 Sup. Ct. 591: 36 L. Ed. 405).
[135]*1355. However, the testimony was not offered nor admitted for such purpose, but for the purpose of showing the practicability of operating the machinery when so guarded. The complaint alleged that it was practicable for defendant to have so guarded the machinery as to have prevented the accident without interfering with its ordinary, use. This was denied in the answer, so it became necessary for plaintiff to establish the proposition that it could be so guarded. No better evidence could have been introduced for this purpose than to show that after the accident the machinery had been so guarded, and that such safeguards had not in any way impeded or interfered with its operation. Erickson v. McNeeley Co., 41 Wash. 509 (84 Pac. 4).
6. Defendant requested the following instruction, which was refused:
“If you find from the evidence in this case that the plaintiff was injured by performing his duties in a dangerous manner, and that he might have performed them safely in a manner provided by the defendant, the plaintiff would be guilty of contributory negligence and could not recover, notwithstanding the defendant has been remiss in its duty of safeguarding the machinery that caused the injury.”
We think this instruction is sufficiently covered by the general instruction on this point, which was as follows:
“Should you find from the evidence that the way taken by the plaintiff in going to the point in the basement, where the belt was to be adjusted, was the usual ordinary way pursued by plaintiff and other employes, whose duties called upon them to go into the basement and to the place where plaintiff was going, and that said way was not in itself so dangerous that an ordinarily prudent man under the same circumstances and conditions would not have gone the same way, then you are instructed that the plaintiff in adopting such course in going to and from said basement at the time he was injured was not guilty of contributory negligence. However, in this connection as the court has already instructed you, if the [136]*136plaintiff was instructed by the defendant to take a way. different than the one taken by the plaintiff, then, if, notwithstanding such instruction, and notwithstanding another way, safe and open, existed, the plaintiff took the way that he did, then, in that event, the rule would be that the plaintiff would be guilty of contributory negligence, for, by reason of taking the way he did, he sustained the injury. But, in determining whether or not an ordinarily prudent man would have taken the way that plaintiff took, you have a right to take into consideration whether or not such a way was usually and customarily used by employes, if it was so used in going to the place where plaintiff was going to adjust the belt. If there was another safe way, and plaintiff knew it, and notwithstanding such knowledge plaintiff went the way he did, and if the way pursued by plaintiff was dangerous, and plaintiff knew it, and by reason of going said dangerous way plaintiff was injured, then, in that event, defendant would not be liable. In the absence of any instruction upon the part of the defendant, concerning what way to take, the question is, Was the way taken by plaintiff one which an ordinarily prudent person would have taken under the same circumstances? If you find from the evidence in this case that the defendant provided the plaintiff with a safe passageway leading to and from the saw, which it is alleged he was operating, to a point where it was necessary for the plaintiff to go to adjust the belt mentioned in plaintiff’s complaint, and the plaintiff had been instructed to follow said route, and in violation of such instructions chose a different and more dangerous route in going to or coming from said point, and in consequence thereof sustained the injury complained of, he would, in that case, be guilty of such contributory negligence as would preclude a recovery in this case, and it would be your duty to find for the defendant.”
This instruction, however, is predicated upon the assumption that such way, if there was such a way, must have been open. In other words, to be available as a way, it must have been a way that could have been pursued by the plaintiff.
[137]*1377. The defendant requested the following instruction, which was refused:
“If you find from the evidence that the shafting with which the plaintiff came in contact and which caused the injury was so located as to preclude the anticipation of danger therefrom upon the part of the defendant, the failure of the defendant to safeguard the same cannot be regarded as negligence upon the part of the defendant.”
This instruction makes defendant’s anticipation of danger the measure of its liability, and was properly refused. The question is not what the defendant, or its servants or agents, careless or otherwise, might have anticipated, but what an ordinarily prudent man would reasonably have anticipated.
8. After the jury had retired, the court recalled them, and gave them further instructions as follows:
“The court has asked you to come down for an additional instruction which should have been given you in the first instance, and the court will now give it to you so that you may take it into consideration in connection with the other instructions that have already been given. It is alleged by the defendant that the plaintiff failed to exercise such care as he was required to use in attempting to get over the main shaft. It is denied by the plaintiff that he failed to exercise the care that was required of him. The defendant alleges that the plaintiff was guilty of contributory negligence in attempting to go over the main shaft. That is to say, the defendant says that the plaintiff was guilty of contributory negligence in the act of attempting to get over the main shaft. The plaintiff denies it. So, therefore, one of the questions for you to decide is whether or not the act of the plaintiff in attempting to get over the main shaft was done with a degree of care which the plaintiff would be required to exercise. The court instructs you that if the plaintiff failed to exercise ordinary care, such care as an ordinarily prudent person would have exercised under all the circumstances of the case, and by reason of his failure to exercise such care the accident occurred, then, in that [138]*138event, the defendant would not be liable, even though you should find that it was the duty of the defendant to provide safeguards for the belting, the shafting, and the coupling. Now the plaintiff, in getting over, or attempting to get over, the main shaft, was required to exercise such care as an ordinarily prudent person would have exercised under the circumstances. And if he failed to do that, and by reason of such failure the injury was sustained, the defendant would not be liable, even though the defendant should have procured safeguards for the belting, the main shaft, or the coupling. Although the master must provide a guard or other protection to prevent injury to employes for shafting and other machinery, still he will not be responsible for damages occasioned by injury, where the danger is well known to the servant, and could have been avoided by the exercise of due care upon his part. Now this is one of the elements of contributory negligence alleged by the defendant, and the burden of proof rests upon the defendant with respect to this, the same as the other elements of contributory negligence, which have been called to your attention.”
A juror then said:
“We have already come to a verdict and signed it, before we got this information,” to which the court rejoined:
“It is the duty of the jury to take into consideration this instruction along with the other instructions that the court has given.”
A Juror: “Do we need a new verdict?”
The Court: “Gentlemen of the jury, proceed with your deliberations and take into consideration all the instructions thus far given you.”
Counsel for Plaintiff: “It appearing after the instruction last given that the jury had already reached a verdict, the plaintiff excepts to the instruction of the court that they should return to the jury room and consider the matter further.”
The jury retired, and thereafter returned with a verdict against defendant for $5,215. With the verdict they [139]*139handed in a paper, being a verdict for the same amount with the name of the foreman crossed out. The verdict was received and the jury discharged. It is impossible to see how this additional instruction, or the sending out of the jury, could have injured defendant. The additional charge was strongly favorable to defendant, and was not excepted to, the exception being merely to the action of the court in directing the jury to retire a second time. It is evident that the form of verdict which contained the name of the foreman crossed with a pen mark was the verdict first agreed upon, and that, after deliberation, the jury did not wish to change it, and therefore found another verdict identical with the first. The defendant was not injured by the action of the court in requiring the jury to deliberate further.
The judgment of the circuit court is affirmed.
Afirmed.