BaeNes, J.
The grounds for reversal urged in this case are that the court erred (1) in refusing to hold that the de[109] fendant was not negligent; (2) in not bolding tbat tbe plaintiff was guilty of contributory negligence; (3) in charging the-jury in various particulars; and (4) in admitting incompetent evidence prejudicial to tbe defendant.
1. In reference to tbe first error, it is said tbat tbe gearing was safely guarded witbin tbe meaning of sec. 1636;, Stats. (1898), and tbe fact tbat tbe guard bad become displaced and so remained for balf an bour on tbe day of tbe injury, and bad also become displaced for a few minutes tbe day before, was not sufficient to charge tbe defendant with knowledge of any infirmity therein. There is no claim tbat tbe defendant bad any actual knowledge that the guard was off on either occasion. We do not find any evidence in tbe case tending to-show tbat tbe guard was not a safe appliance, if we assume tbat it bad been properly and sufficiently fastened, and we do-not think tbat tbe jury would be warranted, on tbe facts-shown, in finding tbat tbe defendant was chargeable with knowledge of tbe fact tbat tbe guard was not in place on tbe occasions referred to. We do think tbat tbe jury might have-found from tbe evidence tbat tbe gearing was not safely guarded in tbe first instance, because of tbe manner in which-tbe guard was put in place. Tbe guard was an inch board, tbe upper edge of which was nailed to another inch board tbat formed part of tbe table, and tbe upper edge of the guard board came up flush with and really formed part of tbe top of tbe table. Tbe guard board was not fastened at tbe bottom, and there was evidfence from which the jury might have found tbat tbe ends were not fastened, although there was considerable evidence to tbe effect tbat it was nailed at tbe ends to tbe two-by-four boards upon which the top of tbe table rested. Tbe evidence further tended to show tbat employees in tbe performance of their work bad occasion to lean against tbe guard in such a manner as to spring tbe lower portion of it inward, and tbat slabs, cants, and other material passing down tbe table came in contact with tbe upper edge of tbe guard board in [110] such a manner as to have a tendency to unloose it from the table proper. The guard had become unloosed the day before the injury occurred. We conclude that a jury question was presented by the evidence, and that the jury was warranted in finding that the gearing was not safely guarded, because of the manner in which the guard was fastened, considered in connection with the character of the forces that were exerted upon it while the mill was in operation.
2. It is next urged that the deceased knew half an hour before he was injured that the guard had become detached, and, knowing this fact, continued at his work and thereby assumed the hazard. The obvious answer to this contention is that under the provisions of sec. 1636/;', Stats. (Laws of 1905, ch. 303), an employee does not assume the hazard of an unguarded gearing by continuing to work around the same after he knows of its existence. Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770; Lind v. Uniform S. & P. Co. 140 Wis. 183, 187, 120 N. W. 839. But it is argued that sec. 1636// should not be held to apply to a case such as this, where the master had provided a sufficient guard in the first instance which had become temporarily displaced, and from which displacement injury resulted before the master had any knowledge, actual or constructive, of the displacement. We cannot agree to this construction or read any such exception into the statute. The jury found that the defendant was negligent in not safely guarding the gearing in the first instance, as required by sec. 1636/, Stats. (1898), and we have already said that there was evidence to support such finding and also a finding that such negligence was the proximate cause of the injury. Sec. 1636// clearly exculpates the employee from that species of contributory negligence known as assumption of hazard in such a case, although it does not cover other phases of contributory negligence. Lind v. Uniform S. & P. Co., supra, and cases cited.
3. It is further argued that the deceased was guilty of [111] •other phases of contributory negligence aside from assumption of hazard. ETo one saw the deceased when he was first ■caught in the gearing, and just what he was doing or how he happened to he caught rests in conjecture. Certainly there is no testimony in the case showing that he became entangled in the gearing because of some act of negligence of which he was guilty at the time he was injured. Contributory negligence being a matter of defense, the burden was upon the defendant to establish the same by affirmative evidence, unless it was •shown by the evidence offered by the plaintiff, and there was tlo such proof in the case.
But it is urged that the deceased knew that the guard was provided for his protection as well as for the protection of •other employees of the defendant; that he knew it had become •displaced half an hour before the injury occurred; that he knew that in the performance of his duties he was required to work in close proximity to this gearing a very considerable part of the time; that he knew this exposed gearing was exceedingly dangerous, and that he had the right to suppose that the master would immediately replace the guard as soon as it had knowledge that such guard was off; that the contrivance was a simple one, consisting of a board three feet long and six inches wide that could be temporarily put back in place by the servant without difficulty, and that the deceased was guilty of •contributory negligence in failing to notify the master when he knew that the guard was off or else in failing to put the same back in place. There would be little doubt that these ■facts would defeat a recovery under the doctrine of Howard v. Beldenville L. Co. 129 Wis. 98, 114, 108 N. W. 48; Yezick v. Chicago B. Co. 138 Wis. 342, 120 N. W. 247, and •other cases, were it not for secs. 1636/ and 1636jj of our stat-ntes. Where reasonably safe machinery has been furnished to the employee, which becomes out of repair during its operation, and the master has no knowledge of that fact and has Tad no reasonable opportunity to acquire such knowledge and [112] remedy the defect, while the servant, with knowledge of the-danger, continues in his employment, the servant is generally-held to have assumed the risk. But we have already said that the servant does not assume the risk of an unguarded gearing-even where the guard has become displaced and the master has had neither actual nor presumed knowledge of the defect,, provided the gearing was not safely guarded in the first instance. The appellant relies on the case of Blahnik v. Central C. Co. 142 Wis. 167, 125 N. W. 317, as holding that the-deceased was negligent in failing to either replace the guard or to notify the master that it was not in place, and, in so far as the facts of the case are identical with those of the present case, the decision is in point. There the plaintiffs intestate-was killed by being caught in unguarded gears and drawn into rapidly revolving drums, and the alleged negligence of the defendant consisted in failure to provide a suitable guard for the gearings and other machinery. It appeared, however,, that a suitable guard had been provided which was temporarily out of place; that the deceased, an oiler, was at times-called upon to assist in making repairs; that the guard could be put back in place without difficulty; that it was extremely dangerous to oil the machinery in the absence of the guard; that deceased had ample time in which to replace the guard;. and that if he desired he might shut down the machinery while he was oiling it. In the case before us it does not appear that the deceased had the appliances at hand to fasten the guard back in place. There was evidence tending to-show that he was occupied with his work all the time and that he was “kept on the jump” at least a part of the time. He-apparently had no authority to shut down the mill. The-character of his work was such that if he left his place of employment to hunt up the foreman or millwright, the mill-might have to cease operations until his return; for aught we-know he might have been subject to censure or even to discharge had he pursued such a course. It was not shown that-[113] the deceased was advised that he might leave his place of work to search out some person in authority for the purpose of notifying that person of the sudden danger to which he was subjected. The facts of the two cases are quite dissimilar. In the Blahnilc Gase it was obviously the duty of the employee to put the guard in place before proceeding to oil the gearing. It is by no means obvious that the deceased either should have replaced the guard here or notified the master so to do. The question of decedent’s negligence was for the jury to determine in the instant case. It is true that the master here furnished a guard which would have protected the deceased had the same remained in place, and that the master had no knowledge that the guard had become displaced, while the servant-had, and it may seem somewhat extreme to hold the master liable under the circumstances. But if the master was originally at fault in failing to securely fasten the guard which it provided, it must suffer the consequences of such negligent act.
4. The first question in the special verdict was as follows:
“Did the defendant ever securely guard the gearing of the machine at which 'the deceased, Philip La Pointe, was injured before said accident ?”
In reference to this question the court charged the jury, among other things:
“By securely guarding it is meant that the defendant should guard the gearing safely, that the persons who work about the building should be secure against danger or violence while performing their work
Exception was taken to the portion of the charge quoted and error is predicated thereon.
We will first consider whether the charge was erroneous,, and, if it was, then whether it was prejudicial. The language used is not qualified in any way elsewhere in the charge. We think the jury would naturally understand from this charge-that it was the defendant’s legal duty to so guard this gearing [114] that injury to au employee could not result therefrom. The language of the court is that the gearing should be so safely guarded that the employee “would be secure against danger or violence while performing his work.” Even though the guard was an ordinarily safe one, or an extraordinarily safe one for that matter, still, if injury or violence resulted therefrom, then the guard was unsafe under the instruction. The instruction practically made the defendant an insurer of the employee against injury from the gearing. It has been decided by this court that this is not a correct statement of the duty of the defendant under sec. 1636/, Stats. (1898). This section as construed by this court does not require the employer to insure his employees’ safety against the possibility of injury, nor does it require of him infallibility nor omniscience. It requires him first to decide whether the gearing is so situated as to be dangerous to employees in the discharge of their duty, and, second, to securely guard or fence it if dangerous. He must use ordinary care and prudence in deciding the first question, and decide it as ordinarily careful and prudent employers under like circumstances, in honest exercise of their judgment, would decide it. If such an employer could reasonably apprehend that injury might result to an employee in the discharge of his ordinary duties from the unguarded gearing, then it is dangerous and must be guarded, and he must also proceed to furnish such a guard, or at least as effective a guard as such ordinarily careful and prudent employers under like circumstances would and do deem it their duty to furnish. This is a secure guard within the meaning of the law. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153. The only exception to the last proposition is that if the guard so ordinarily furnished be obviously dangerous it will not be deemed sufficient. Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689.
In the Guinard Case the plaintiff was injured by a revolv[115] ing shaft which was not guarded. The statute then in force (subd. 2, sec. 1636/, S. & B. Ann. Stats.) required shafting to he securely guarded if so located as to he dangerous to employees while engaged in performing their ordinary duties. The precise question presented was whether the master was negligent in failing to guard, and, of course, involved his duty under the statute in this regard. This court held that it was reversible error not to charge the jury unqualifiedly that “if the defendant furnished a place which was as safe and free from danger as other persons of ordinary care engaged in like business and under like circumstances ordinarily furnish, then you will find for the defendant on such fact.” The above quoted instruction was given and held to be correct, but the judgment was reversed because the trial court added these qualifying words: “But not if you find that places provided by such other employers of labor for their workmen or servants are not reasonably safe places in which their men are obliged to work.” The court, after some considerable discussion of the question, holds that an employer is bound to exercise ordinary care only in guarding machinery which the statute provides must be guarded.
In Powalske v. Cream City B. Co., supra, the plaintiff was injured by coming in contact with an unguarded shaft, which is one of the appliances specifically named in sec. 1636/, Stats. (1898). In that case the court said:
“The statute does not require every shaft in a factory to be guarded or fenced, but only such as are so located as to be dangerous to employees in the discharge of their duties. It does not hold the owner of a factory, where machinery of the kind it mentions is used, bound to anticipate every possible danger to his employees that may in any event exist therefrom by reason of its being unguarded. The statute must have a reasonable, sensible construction. It plainly contemplates that persons required to comply with its provisions shall exercise ordinary judgment in determining whether machinery should be guarded, and that, in such exercise, they shall bring to bear [116] upon the subject ordinary prudence and intelligence under the circumstances of each particular case.”
Continuing, the court bolds tbat, unless tbe employer bad reasonable ground to apprehend tbat an accident might happen to the employee while engaged in performing bis work, there was no breach of duty in failing to provide a guard.
There can hardly be' any justification for the claim that,, while the employer must exercise only ordinary care in discovering whether a gearing or a shaft should be fenced or guarded, yet, having discovered that a guard must be put in place, such guard must afford an absolute protection to the employee at all times and under all circumstances when he is-engaged in the line of his employment. If only ordinary care is required in the first place in discovering a defect, ordinary care is all that is necessary in guarding it.
If this rule be wrong, then the court was wrong in holding in Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770, that, while sec. 1636;/, Stats. (Laws of 1905, ch. 303), took away the defense of assumption of hazard where sec. 1636/, Stats. (1898), had been violated, still the “employer’s right to the defense of other phases of contributory negligence” was not taken away; and the court was in error again in approving of this decision in Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839.
If it be the duty of the master to insure the employee against danger from an unguarded gearing, and to make it so safe that the employee cannot get hurt therein, then the servant has a perfect right to rely on this legal duty and to assume that it will be performed, and in the nature of things he cannot be guilty of any act of negligence that would defeat a recovery. He might, as against any kind of a guard, manage to injure himself if he set about to do so, but this would not be negligence. The principle involved is very closely analogous to the principles held applicable to the common-law duty of an employer to furnish to an employee a safe place to [117] work. That duty is to furnish a place reasonably safe; i. e. a place as safe and free from danger as other persons of ordinary care and prudence in like business and under Hke circumstances ordinarily furnish, subject only to the limitation as to obviously unsafe places above indicated. Jensen v. Hudson S. Co. 98 Wis. 73, 79, 73 N. W. 434; Prybilski v. Northwestern C. R. Co. 98 Wis. 413, 74 N. W. 117; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064; Sladky v. Marinette L. Co. 107 Wis. 250, 251, 83 N. W. 514; Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689. So the true rule, ■subject to the limitation referred to, is that, if the employer furnish such a guard as is in general use among employers of ■ordinary caution in the same line of business and under the same circumstances, he has discharged the duty imposed upon him, and the guard so furnished is in a legal sense reasonably safe and the dangerous machinery has been securely guarded within the meaning of the statute. This rule of law requires the master to exercise ordinary care in providing a guard or fence for such machinery as is required to be guarded or fenced. That given by the trial court required something beyond even extraordinary care, in that it held him liable if injury resulted. There are cases in which the trial court has referred to the language of sec. 1636j without attempting to explain the meaning thereof. There are cases in which this court has done likewise. But in no case in this court, where the question was squarely raised and presented, has the court decided that the rule established by the cases cited herein is not good law, and in no ease has it been said that machinery and appliances are not securely guarded when the owner exercises the degree of care in reference thereto called for by the established rule. We conclude that the trial court erred in ■giving the instruction under consideration.
The judgment should not be reversed, however, unless it appears that the erroneous instruction has affected the substantial rights of the defendant. Ch. 192, Laws of 1909' [118] (sec. 3072m_, Stats.). Did it do so? At best, tbe question was a close one as to whether the defendant was guilty of any act of negligence in providing the guard in question. The defendant strenuously contends in this court that the evidence does not support the finding of the jury in this behalf. The court submitted the first question to the jury presumably because it dealt with a disputed question of fact, and we are satisfied that upon the evidence the jury might well have found that the defendant was free 'from negligence. So we have a vital question in the verdict on which the jury might have found in favor of either party. It seems to us that the instruction, in effect, took this question from the jury and left it nothing to decide, if the jury paid any heed to it, and in view of the conclusion reached this court cannot say thát the instruction was not a controlling factor with the jury. If the machine should be so guarded that the deceased would be “secure against danger or violence,” then clearly the defendant was at fault, because the deceased was injured by reason of the failure of the master to provide a guard that would protect him. The process- of reasoning by which the jury would naturally reach the conclusion which it did is simple, direct, and well nigh obvious: The master should have provided a guard that would have prevented the injury. He did not do so. Therefore he did not perform his duty by properly guarding the gear. A contrary conclusion could not well have been reached unless the jury wholly disregarded the instruction. The prejudice that might result from the instruction was further emphasized by the receipt of testimony, against objection, showing that a sheet-iron guard could be placed over the gearing and securely fastened without impairing the usefulness of the machinery. If an erroneous instruction can be regarded as prejudicial in any case, we fail to see any escape from the conclusion that the error we are considering was substantial and that there must be a new trial because of it. The cases of Bodenheimer v. C. & N. W. R. Co. [119] 140 Wis. 623, 123 N. W. 148; Ripon H. Co. v. Haas, 141 Wis. 65, 123 N. W. 659; and Schumacher v. Tuttle P. Co. 142 Wis. 631, 126 N. W. 46, were all decided since cb. 192, Laws of 1909 (sec. 3072m, Stats.), was enacted, and tbe conclusions reached in those cases show that judgments are still reversed in this court for giving erroneous instructions, when they are prejudicial, and for refusing to give proper and material instructions when requested.
5. The witness Elfstrom testified that the gearing could have been guarded by using a sheet-iron covering instead of hemlock boards; that such a guard could have been fastened on the roller bed; and that so fastened it would not have interfered with the use of the machine. The evidence was objected to and exception taken to the rulings of the court holding it competent. The evidence was not competent and should not have been received. Where the master insists that it is not feasible to guard dangerous machinery at all, it is held admissible to show that a guard was provided after injury resulted from the exposed machinery. Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839, and cases cited. Such evidence is receivable for no other purpose than to show that the machinery might have been guarded. But it is not competent to show that some kind of a guard should have been used which in the judgment of a witness might be more efficient than that provided. So long as the master uses the ordinary appliances commonly used by ordinarily prudent men, and has disobeyed no law of the land, he has fulfilled his duty, unless, perchance, such appliances are obviously dangerous. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064; Osborne v. Lehigh Valley C. Co. 97 Wis. 27, 30, 71 N. W. 814; Jensen v. Hudson S. Co. 98 Wis. 73, 73 N. W. 434; Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 563; Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689. No claim was made in this case that the gearing could not be guarded. The appel[120] lant did provide a guard for tbe gearing and contends that it discharged its full duty in so doing. It is unnecessary to decide whether the court would consider the error of sufficient materiality to work a reversal of the judgment. As the case mustTe sent back for a new trial for other reasons, the error can be readily avoided on another trial.
Other errors are argued, none of which affect the plaintiff’s cause of action. As the questions are not likely to arise on a •subsequent trial of the cause, we refrain from discussing them.
By the Goiurt. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
The following opinion was filed December 13, 1910: