Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of law only; the facts having been examined and no error found therein. Held, that the trial court erred in refusing to charge that, if the plaintiff knew or ought to have known that the guard was off the machine, he assumed the risk of the accident which befell him and cannot recover; also held, that it was error to refuse to charge that the failure of the superintendent of the mill to replace the guard was the negligence of a competent fellow servant of the plaintiff, for which the defendant cannot be charged with negligence, if they so find, for the reason that the replacing of it is a mere detail of the work; also held that, the action having been tried as one to recover upon a common-law liability, the rules governing such actions must be held to apply upon this appeal.
SPRING, J., dissents.