SiebbcKeb, J.
Tbe court found tbe plaintiff guilty of contributory negligence as matter of law and upon that ground awarded judgment dismissing tbe complaint. Tbe contentions presented on tbis appeal involve consideration of tbe evi-dentiary facts bearing on tbe question of tbe special verdict, finding tbe defendant guilty of negligence in not securely guarding tbe set-screw on tbe revolving shaft, whether or not tbe plaintiff’s clothing was caught therein and caused to. wind on tbe revolving shaft, and whether tbe evidence shows affirmatively that tbe plaintiff was guilty of a want of ordinary ■care in performing bis duties as oiler which proximately contributed to produce bis injuries.
Tbe jury found that tbe set-screw was unguarded at tbe time of tbe accident; that tbe defendant in tbe exercise of ordinary care should have known of its upguarded condition in time to have securely guarded it before tbe injury; that it was so located as to make its unguarded" condition dangerous to employees exercising ordinary care while discharging their duties; that tbe plaintiff was drawn against tbe revolving shaft by tbe set-screw catching in bis clothing; that tbe negligent failure to guard tbe set-screw proximately caused plaintiff’s injuries; and that be was free from contributory negligence. It is evident from tbe nature of tbe facts alleged that tbe defendant is charged with negligence in failing to comply [110]*110■with, the requirements of see. 1636/, Stats. (1898), providing that the machinery therein specified, when “so located as to. be dangerous to employees in the discharge of their duty, shall be securely guarded or fenced.” It has been held that a setscrew attached to a revolving shaft like the one in question is a part thereof and within the contemplation of the provisions of this statute, and hence must be securely guarded when so located as to be dangerous to employees in the discharge of their duty. Van de Bogart v. Marinette & M. P. Co. 132 Wis. 361, 377 et seq., 112 N. W. 443. The jury’s verdict must be interpreted in the light of the allegation setting forth a cause of action arising out of a failure to perform the duties imposed by this statute. We cannot doubt that it establishes, in accordance with the charges of negligence in the complaint, that the defective wooden collar placed over the set-screw as a guard did not securely guard it, that it slipped off from the set-screw by reason of its defective condition just before the-plaintiff’s clothing was caught, — either because the plaintiff’s, wrist came into contact with it or without such contact, — and that the plaintiff’s clothing was caught by the set-screw, causing it to wind around the shaft and thus producing his injuries. The respondent contends that the evidence wholly fails to support these findings and hence the judgment of dismissal was properly awarded.
There is no dispute but that the wooden guard collar was-, off from the set-crew before the plaintiff’s clothing was wound around the shaft. All the witnesses testifying to this fact state that it was found on the shaft near the wooden pulley to-the west of the clothing on the shaft, and hence it was necessarily placed there before the clothing became wound around the shaft. From this it also follows that the set-screw was uncovered and left in a condition to catch the plaintiff’s clothing. Plaintiff states that he did not observe what part of his clothing started to wind on the shaft, but testified that he felt something grip him and that he felt a jerk over the right [111]*111breast. While there is no direct evidence of any one observing the clothing and set-screw come into contact, the facts and circumstances showing plaintiffs position, the location of his hand, wrist, and arm over the revolving unguarded set-screw, furnish a basis for the inference that the set-screw caught the sleeve of his jacket and pulled it sufficiently to start it winding on the shaft before the set-screw became disengaged. In the light of the situation thus presented it is not only a reasonable inference that this result could follow, hut it is a natural and most probable result of the facts and circumstances disclosing plaintiffs situation in relation to this revolving set-screw, and the jury were well justified in finding this to be the fact. It is argued that this inference is wholly negatived by the facts tending to show that the plaintiff struck against the shaft while facing it, bruising and injuring his chest, before he became suspended by his clothing with his back to the shaft. We perceive nothing in this negativing the inference that the plaintiffs clothing first caught on the set-screw, that it then started to wind on the shaft, that he was then drawn against the shaft with such violence as to produce these injuries to his right and left breasts, and that finally he was left suspended as described by the witnesses.
The jury’s finding that the defendant in the exercise of ordinary care ought to have known of the unguarded condition of the set-screw in time to have securely guarded it before the plaintiff was injured is assailed as unsupported by the evidence. In the light of the allegations and-the evidentiary facts tending to show that the negligence charged consisted in using a defective wooden collar over the set-screw, which did not securely guard it, it must follow that the court and jury understood by this and the first finding in the verdict that the negligence referred to in these findings was the defendant’s omission to securely guard this set-screw through using this defective collar, and that the accident was attributable thereto. Does the evidence sustain the finding that the defendant in [112]*112the exercise of ordinary care ought to have discovered that the wooden collar was defective and to have repaired it before the injury ? The condition of the collar is discoverable from an inspection. Such an inspection shows a defect which indicates its liability to slip off from the set-screw. It also bears marks of wear, tending to show that it had slipped over the set-screw. There is evidence to the effect that the collar with the wire around it had been off the set-screw when the machine was in operation at different times, some of them a long time prior to the accident. Under these circumstances it is reasonably clear that the defendant in the exercise of ordinary care should have discovered the defect in the wooden collar and that it did not furnish a secure guard.
Upon the defendant’s motion the trial court changed the jury’s finding that the plaintiff was not guilty of any want of ordinary care contributing to produce his injuries and held him guilty of contributory negligence as matter of law, and hence dismissed the complaint. Is this ruling justified by the record ? As declared in Clary v. C., M. & St. P. R. Co. 141 Wis. 411, 123 N. W. 649:
“The correct inquiry in such case, where the burden of proof is upon the defendant, is not whether there is evidence to support the finding of the jury, because that may be supported by lack of evidence in whole or in part, but whether there is uncontroverted evidence which supports the ruling of the trial court.”
The claim here is that the plaintiff had been instructed how to put the grease into the grease cups and had been told to avoid reaching over the revolving shaft, the wooden collar, and the set-screw by turning the clutch pulley so as to place the grease cups to the north of the shaft and its attachments before filling them, and that the exercise of ordinary care required this course of operation in the performance of this duty.
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SiebbcKeb, J.
Tbe court found tbe plaintiff guilty of contributory negligence as matter of law and upon that ground awarded judgment dismissing tbe complaint. Tbe contentions presented on tbis appeal involve consideration of tbe evi-dentiary facts bearing on tbe question of tbe special verdict, finding tbe defendant guilty of negligence in not securely guarding tbe set-screw on tbe revolving shaft, whether or not tbe plaintiff’s clothing was caught therein and caused to. wind on tbe revolving shaft, and whether tbe evidence shows affirmatively that tbe plaintiff was guilty of a want of ordinary ■care in performing bis duties as oiler which proximately contributed to produce bis injuries.
Tbe jury found that tbe set-screw was unguarded at tbe time of tbe accident; that tbe defendant in tbe exercise of ordinary care should have known of its upguarded condition in time to have securely guarded it before tbe injury; that it was so located as to make its unguarded" condition dangerous to employees exercising ordinary care while discharging their duties; that tbe plaintiff was drawn against tbe revolving shaft by tbe set-screw catching in bis clothing; that tbe negligent failure to guard tbe set-screw proximately caused plaintiff’s injuries; and that be was free from contributory negligence. It is evident from tbe nature of tbe facts alleged that tbe defendant is charged with negligence in failing to comply [110]*110■with, the requirements of see. 1636/, Stats. (1898), providing that the machinery therein specified, when “so located as to. be dangerous to employees in the discharge of their duty, shall be securely guarded or fenced.” It has been held that a setscrew attached to a revolving shaft like the one in question is a part thereof and within the contemplation of the provisions of this statute, and hence must be securely guarded when so located as to be dangerous to employees in the discharge of their duty. Van de Bogart v. Marinette & M. P. Co. 132 Wis. 361, 377 et seq., 112 N. W. 443. The jury’s verdict must be interpreted in the light of the allegation setting forth a cause of action arising out of a failure to perform the duties imposed by this statute. We cannot doubt that it establishes, in accordance with the charges of negligence in the complaint, that the defective wooden collar placed over the set-screw as a guard did not securely guard it, that it slipped off from the set-screw by reason of its defective condition just before the-plaintiff’s clothing was caught, — either because the plaintiff’s, wrist came into contact with it or without such contact, — and that the plaintiff’s clothing was caught by the set-screw, causing it to wind around the shaft and thus producing his injuries. The respondent contends that the evidence wholly fails to support these findings and hence the judgment of dismissal was properly awarded.
There is no dispute but that the wooden guard collar was-, off from the set-crew before the plaintiff’s clothing was wound around the shaft. All the witnesses testifying to this fact state that it was found on the shaft near the wooden pulley to-the west of the clothing on the shaft, and hence it was necessarily placed there before the clothing became wound around the shaft. From this it also follows that the set-screw was uncovered and left in a condition to catch the plaintiff’s clothing. Plaintiff states that he did not observe what part of his clothing started to wind on the shaft, but testified that he felt something grip him and that he felt a jerk over the right [111]*111breast. While there is no direct evidence of any one observing the clothing and set-screw come into contact, the facts and circumstances showing plaintiffs position, the location of his hand, wrist, and arm over the revolving unguarded set-screw, furnish a basis for the inference that the set-screw caught the sleeve of his jacket and pulled it sufficiently to start it winding on the shaft before the set-screw became disengaged. In the light of the situation thus presented it is not only a reasonable inference that this result could follow, hut it is a natural and most probable result of the facts and circumstances disclosing plaintiffs situation in relation to this revolving set-screw, and the jury were well justified in finding this to be the fact. It is argued that this inference is wholly negatived by the facts tending to show that the plaintiff struck against the shaft while facing it, bruising and injuring his chest, before he became suspended by his clothing with his back to the shaft. We perceive nothing in this negativing the inference that the plaintiffs clothing first caught on the set-screw, that it then started to wind on the shaft, that he was then drawn against the shaft with such violence as to produce these injuries to his right and left breasts, and that finally he was left suspended as described by the witnesses.
The jury’s finding that the defendant in the exercise of ordinary care ought to have known of the unguarded condition of the set-screw in time to have securely guarded it before the plaintiff was injured is assailed as unsupported by the evidence. In the light of the allegations and-the evidentiary facts tending to show that the negligence charged consisted in using a defective wooden collar over the set-screw, which did not securely guard it, it must follow that the court and jury understood by this and the first finding in the verdict that the negligence referred to in these findings was the defendant’s omission to securely guard this set-screw through using this defective collar, and that the accident was attributable thereto. Does the evidence sustain the finding that the defendant in [112]*112the exercise of ordinary care ought to have discovered that the wooden collar was defective and to have repaired it before the injury ? The condition of the collar is discoverable from an inspection. Such an inspection shows a defect which indicates its liability to slip off from the set-screw. It also bears marks of wear, tending to show that it had slipped over the set-screw. There is evidence to the effect that the collar with the wire around it had been off the set-screw when the machine was in operation at different times, some of them a long time prior to the accident. Under these circumstances it is reasonably clear that the defendant in the exercise of ordinary care should have discovered the defect in the wooden collar and that it did not furnish a secure guard.
Upon the defendant’s motion the trial court changed the jury’s finding that the plaintiff was not guilty of any want of ordinary care contributing to produce his injuries and held him guilty of contributory negligence as matter of law, and hence dismissed the complaint. Is this ruling justified by the record ? As declared in Clary v. C., M. & St. P. R. Co. 141 Wis. 411, 123 N. W. 649:
“The correct inquiry in such case, where the burden of proof is upon the defendant, is not whether there is evidence to support the finding of the jury, because that may be supported by lack of evidence in whole or in part, but whether there is uncontroverted evidence which supports the ruling of the trial court.”
The claim here is that the plaintiff had been instructed how to put the grease into the grease cups and had been told to avoid reaching over the revolving shaft, the wooden collar, and the set-screw by turning the clutch pulley so as to place the grease cups to the north of the shaft and its attachments before filling them, and that the exercise of ordinary care required this course of operation in the performance of this duty. The court submitted this inquiry to the jury in a proper way upon these grounds and they found that the evi[113]*113dence did not establish his contributory negligence. Is there uncontroverted evidence showing that the defendant was guilty of a want of ordinary care in doing as he did and that this proximately contributed to produce his injuries % The defendant asserts that the plaintiff was instructed to turn the clutch pulley so as to place the grease cups to the north of the shaft before he was to attempt to fill them, and that he disregarded the instruction. The plaintiff denies that he received this instruction either by word or by being shown to so perform this duty. It was for the jury to pass upon this conflict in the evidence.
It is further urged that without such instruction it was negligent as a matter of law for him to reach over the revolving shaft to fill the grease cups and thus place his wrist and arm in close proximity to the revolving shaft and wooden collar, or the shaft and the set-screw if the collar had been removed. . Upon this point it is urged that if the wooden collar was then off from the set-screw, reaching across these revolving parts of machinery was so open and obvious a danger as to preclude an inference that he exercised ordinary care in performing his duty. This contention assumes that the plaintiff knew or ought to have known of the presence of the exposed set-screw, but there is no proof to this effect. The evidence tends to the contrary, for the plaintiff states that he observed no change or difference in the situation and conditions before him from what they were theretofore, and that he did not specially observe the set-screw or the wooden collar, but that things looked as usual to him. It is evident that if there was no guard over the set-screw it could not be seen on the shaft while it revolved at the rate of speed shown here. To say as matter of law that the plaintiff acted negligently in doing as he did, it must be held that the act of reaching over the moving shaft in the manner he describes constituted a want of ordinary care. Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694. We cannot so regard it. In the light [114]*114of the conditions before him and Ms knowledge of them he had the right to act upon the assumption that he was not exposed to danger from the set-screw or that it was securely guarded. If it had been securely guarded we cannot say that placing his arm with the jacket sleeve on it where he did in order to-fill the grease cup was an act inherently and obviously dangerous. Nor does the fact that he came near the revolving shaft with his arm clothed as it was necessarily show that he placed himself in obvious danger. We are persuaded that his. conduct in performing these duties is not so clearly negligent as to establish affirmatively as matter of law that the plaintiff was guilty of a want of ordinary care proximately contributing to produce his injuries. The burden of showing plaintiff’s want of ordinary care rested on the defendant; it cannot beheld to have been shown as matter of law unless the undisputed evidence supports such a conclusion. We find no evidence that clearly and incontrovertibly establishes that the-plaintiff failed to exercise ordinary care in the performance of Ms duty.
Appellant’s counsel places much reliance on the case of Muenchow v. Theo. Zschetzsche & Son Co. 113 Wis. 8, 88 N.. W. 909, as a controlling authority in this case. We do not regard the facts on which negligence is predicated in that and' in this case as at all alike. It also appears that the decision in the Muenchow Case is based on the ground that the plaintiff' assumed the risk. This does not. apply to the plaintiff in this-case under the existing law.
The order of the trial court changing the jury’s finding, by which they found that the plaintiff was free from contributory negligence, was erroneous and must be set aside and the-jury’s answer to question number 6 be restored.
By the Court. — The judgment is reversed, and the cause-remanded with directions to the trial court to reverse its order changing the answer to question 6 of the verdict as returned by the jury and to restore the answer of the jury [115]*115thereto, and to award plaintiff judgment upon the verdict as-rendered by the jury.