McBRIDE, C. J.
It will be noticed, as to the requested instruction respecting contributory negligence, that there is no plea of contributory negligence in the answer. Defendant simply denies her own negligence in the matter so that contributory negligence is not in the case; and, as a general rule, courts are not required to instruct upon issues not made by the pleadings. This, however, is not an absolute rule, as there may arise from the testimony, or from circumstances attending the trial, a neces
sity for instructions not specifically within the issues, but necessary to enable the jury to appraise fully the evidence and its effect. This may be by way of cautionary instructions or may arise from a variety of causes and is most generally within the discretion of the court. But, we fail to see the necessity for it in the case at bar, and we cannot conceive how the plaintiff was injured by the refusal of the court to give such instructions. In fact, there is no evidence whatever of contributory negligence on the part of the decedent. It is a plain question before the jury as to whether the decedent, at the time he was injured, was doing an act within the scope of the employment, or engaged in sawing his own wood for his own use upon his own time and not his employer’s; and, whether the accident was caused by an inherent defect in the machinery, or failure to properly gmard it. There is some circumstantial evidence tending to show that his clothing was in some way caught in the machinery in such a manner as to have resulted in his death. This evidence is slight but sufficient to go to the jury. The evidence as to the necessity and practicability of guarding the machinery was contradictory and was submitted to the jury by proper instructions. Taking the instructions given by the court as a whole, they seem to us to have been quite as favorable to the plaintiff in these respects as the law justifies, 'and, so far as relevant here, it would seem not improper to give all those contained in the bill of exceptions.
“VI.
“Defendant by her answer admits the plaintiff to be the widow of Bay Stanfield, deceased, but denies each and every other allegation of the complaint. The first issue in this case is the alleged employ
ment by the defendant of Ray Stanfield, the plaintiff’s deceased husband, and upon that issue the burden of proof is with the plaintiff, and she must show an employment before she can recover, but it is not necessary she should show a direct contract of employment. If you should find from the evidence that Ray Stanfield at the time of the accident complained of, was performing work and labor on defendant’s farm, with her knowledge and consent, then he was, for the purposes of this case, in the employ of the defendant.
“VII.
“The complaint charges certain acts of negligence on the part of the defendant; in determining whether the defendant was negligent you should only consider whether the defendant was negligent in the particular respects alleged in the complaint and you are not to consider whether defendant may have been negligent in some other respects which have not been charged in the complaint. In other words, if the plaintiff is entitled to recover at all she would be entitled to recover only on account of negligence alleged in the complaint.
“vrn.
“The law provides that the owner, or person having charge of any work involving risk or danger to the employee, shall use every device, care and precaution which is practicable to use for the protection and safety of life and limb, limited only to the necessity for preserving the efficiency of the structure or apparatus, without regard to the additional cost of suitable material or safety appliance, and device. If in the pursuance of the duties of his employment, it was necessary for the plaintiff’s husband to be where he was, or if his work involved a risk or danger to him, then it was the duty of the defendant to use every device, care and precaution which it was practicable to use for the protection and safety of life and limb, limited only by the necessity for
preserving the efficiency of the structure or apparatus, and without regard to the additional- cost of suitable material.
“The kind of employment protected by the statute is that which is beset with danger, or that which under the circumstances or manner in which it is being executed is rendered dangerous. You are to determine from a consideration of all the evidence in this case, whether or not it was inherently dangerous to operate such machinery. If, after such consideration, you find by a preponderance of the evidence that such machinery was inherently dangerous, or was operated under conditions or circumstances rendering it inherently dangerous, you should determine whether or not it could have been covered or guarded without necessarily limiting the efficiency of such machinery. Among other issues in this case, the plaintiff must prove by the preponderance of the evidence, not only that the machinery was inherently dangerous, or was being operated under such conditions or circumstances as to render it inherently dangerous, but that it could have been covered or guarded without necessarily limiting its efficiency.
“IX.
“The duty imposed upon the master by the Employers’ Liability Act is a nondelegable duty, and therefore when we once determine the duty imposed upon the master we find a duty which is absolute, nondelegable and continuing; the employer can not absolve himself from the performance of it nor can he delegate it to the employee, but it adheres to him without the possibility of suspension or interruption.
“X.
“If there are no guards on the market and none known to the employer or if the guards on the market and those known to him are not reasonably suitable he is nevertheless required to exercise the care, capacity and intelligence of a reasonably pru
dent and ordinarily intelligent person to suggest and fashion a reasonably suitable guard.
“XI.
“Under the Employers’ Liability Act, the employer does not perform his duty by merely directing the employées to safeguard the machinery, if dangerous, even if the employee agrees so to do. The legal duty resting on the employer is absolute and nondelegable and he must see that it is performed.
“XII.
“I have already told you that the law of this state requires owners of dangerous machinery to keep the same securely covered and protected to the fullest extent that the proper operation of the machinery permits, and I now instruct you that a violation of this law is negligence in and of itself.
“XIII.
“ ‘Dangerous’ means attendant or beset with danger, perilous, hazardous, unsafe. The word ‘dangerous’ is the opposite of the word ‘safe.’
“XIV.
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McBRIDE, C. J.
It will be noticed, as to the requested instruction respecting contributory negligence, that there is no plea of contributory negligence in the answer. Defendant simply denies her own negligence in the matter so that contributory negligence is not in the case; and, as a general rule, courts are not required to instruct upon issues not made by the pleadings. This, however, is not an absolute rule, as there may arise from the testimony, or from circumstances attending the trial, a neces
sity for instructions not specifically within the issues, but necessary to enable the jury to appraise fully the evidence and its effect. This may be by way of cautionary instructions or may arise from a variety of causes and is most generally within the discretion of the court. But, we fail to see the necessity for it in the case at bar, and we cannot conceive how the plaintiff was injured by the refusal of the court to give such instructions. In fact, there is no evidence whatever of contributory negligence on the part of the decedent. It is a plain question before the jury as to whether the decedent, at the time he was injured, was doing an act within the scope of the employment, or engaged in sawing his own wood for his own use upon his own time and not his employer’s; and, whether the accident was caused by an inherent defect in the machinery, or failure to properly gmard it. There is some circumstantial evidence tending to show that his clothing was in some way caught in the machinery in such a manner as to have resulted in his death. This evidence is slight but sufficient to go to the jury. The evidence as to the necessity and practicability of guarding the machinery was contradictory and was submitted to the jury by proper instructions. Taking the instructions given by the court as a whole, they seem to us to have been quite as favorable to the plaintiff in these respects as the law justifies, 'and, so far as relevant here, it would seem not improper to give all those contained in the bill of exceptions.
“VI.
“Defendant by her answer admits the plaintiff to be the widow of Bay Stanfield, deceased, but denies each and every other allegation of the complaint. The first issue in this case is the alleged employ
ment by the defendant of Ray Stanfield, the plaintiff’s deceased husband, and upon that issue the burden of proof is with the plaintiff, and she must show an employment before she can recover, but it is not necessary she should show a direct contract of employment. If you should find from the evidence that Ray Stanfield at the time of the accident complained of, was performing work and labor on defendant’s farm, with her knowledge and consent, then he was, for the purposes of this case, in the employ of the defendant.
“VII.
“The complaint charges certain acts of negligence on the part of the defendant; in determining whether the defendant was negligent you should only consider whether the defendant was negligent in the particular respects alleged in the complaint and you are not to consider whether defendant may have been negligent in some other respects which have not been charged in the complaint. In other words, if the plaintiff is entitled to recover at all she would be entitled to recover only on account of negligence alleged in the complaint.
“vrn.
“The law provides that the owner, or person having charge of any work involving risk or danger to the employee, shall use every device, care and precaution which is practicable to use for the protection and safety of life and limb, limited only to the necessity for preserving the efficiency of the structure or apparatus, without regard to the additional cost of suitable material or safety appliance, and device. If in the pursuance of the duties of his employment, it was necessary for the plaintiff’s husband to be where he was, or if his work involved a risk or danger to him, then it was the duty of the defendant to use every device, care and precaution which it was practicable to use for the protection and safety of life and limb, limited only by the necessity for
preserving the efficiency of the structure or apparatus, and without regard to the additional- cost of suitable material.
“The kind of employment protected by the statute is that which is beset with danger, or that which under the circumstances or manner in which it is being executed is rendered dangerous. You are to determine from a consideration of all the evidence in this case, whether or not it was inherently dangerous to operate such machinery. If, after such consideration, you find by a preponderance of the evidence that such machinery was inherently dangerous, or was operated under conditions or circumstances rendering it inherently dangerous, you should determine whether or not it could have been covered or guarded without necessarily limiting the efficiency of such machinery. Among other issues in this case, the plaintiff must prove by the preponderance of the evidence, not only that the machinery was inherently dangerous, or was being operated under such conditions or circumstances as to render it inherently dangerous, but that it could have been covered or guarded without necessarily limiting its efficiency.
“IX.
“The duty imposed upon the master by the Employers’ Liability Act is a nondelegable duty, and therefore when we once determine the duty imposed upon the master we find a duty which is absolute, nondelegable and continuing; the employer can not absolve himself from the performance of it nor can he delegate it to the employee, but it adheres to him without the possibility of suspension or interruption.
“X.
“If there are no guards on the market and none known to the employer or if the guards on the market and those known to him are not reasonably suitable he is nevertheless required to exercise the care, capacity and intelligence of a reasonably pru
dent and ordinarily intelligent person to suggest and fashion a reasonably suitable guard.
“XI.
“Under the Employers’ Liability Act, the employer does not perform his duty by merely directing the employées to safeguard the machinery, if dangerous, even if the employee agrees so to do. The legal duty resting on the employer is absolute and nondelegable and he must see that it is performed.
“XII.
“I have already told you that the law of this state requires owners of dangerous machinery to keep the same securely covered and protected to the fullest extent that the proper operation of the machinery permits, and I now instruct you that a violation of this law is negligence in and of itself.
“XIII.
“ ‘Dangerous’ means attendant or beset with danger, perilous, hazardous, unsafe. The word ‘dangerous’ is the opposite of the word ‘safe.’
“XIV.
“If you find from the evidence that the accident described in the complaint was caused solely by the fault of the plaintiff’s husband, your verdict should be for the defendant.
“XVI.
“You are instructed that the charge of negligence made by the plaintiff against the defendant must be proven by a preponderance of the evidence, and you have no right to presume negligence, and if the evidence does not preponderate in favor of the plaintiff on that issue, your verdict must be for the defendant. In considering whether the defendant was guilty of negligence, you should only consider
•whether the defendant was negligent in the particular respect alleged in the complaint, and you are not to consider whether the defendant may have been negligent in some other respects which have not been charged in the complaint; in other words, if the plaintiff is entitled to prevail she would be entitled to recover only on account of the negligence alleged in the complaint.
“xvn.
“The court instructs the jury that negligence is defined to be that want of ordinary care, that is, such care as an ordinarily prudent person would exercise under like circumstances. There is no precise definition of ordinary care, but it may be said that it is the care which an ordinarily prudent person would exercise under like circumstances, and should be proportioned to the danger and peril reasonably to be apprehended from a lack of proper prudence.”
The last instruction, number seventeen, defining common-law negligence, was, however, misleading as applied to the case at bar, because it in substance suggested to the jury that ordinary care was the measure of a person’s duty in regard to machinery inherently dangerous, which is not the law. And, in view of the other instructions given by the court, was contradictory to those. Ordinary care is not the rule in regard to machinery inherently dangerous, but the law, as previously stated by the court, requires the employer, using such machinery, to use every precaution and device consistent with the proper operation of such machinery to protect those employees using it from danger. This is the measure of prudence which goes beyond ordinary care and the giving of the last instruction quoted was error; negligence in cases of this character being a failure to comply
with the requirements of the statute. It is not clear that such instruction produced the verdict that was rendered, hut the case was a close one on the testimony and it might have done so. For this reason the judgment must be reversed and a new trial directed. Reversed and Remanded.
Bean, Brown and Belt, ”JJ., concur.