McFaul

The plaintiff, an employee of the defendant, recovered judgment against it for the sum of three thousand five hundred dollars, as damages for personal injuries suffered by him, in the course of his employment, by reason of a defective machine. This appeal is prosecuted from an order denying defendant’s motion for a new trial.

It is first urged that the complaint does not state a cause of action, the specific objection being that it fails to allege that “the plaintiff was injured while in the necessary and proper discharge of his duty.” No specific demurrer was directed to this alleged defect in the pleading, and in the absence of a special demurrer it will he held that the complaint is sufficient in this regard.

The following instruction is assailed: “If you find from the evidence that the accident through which plaintiff was injured resulted from an inherent defect in the machinery, as alleged in the complaint, which might have been discovered by the exercise of reasonable diligence on the part of defendant, and that plaintiff did not know, and was not in a position to have found out, such defect, in the usual and ordinary course of his employment, then you should find for the…