The Standard Oil Company of Indiana v. Helmick. said crank and machinery was not imminent or prob able, either at the time the promises to repair were made, or at the time plaintiff was injured. Plaintiff had worked in said candle factory where he was hurt for three months prior to his being hurt, and was familiar with the manner of operating the machine No. 1 at the time his injury occurred. The condition of the machine No. 1, as it was when plaintiff's injury occurred, had existed one day prior thereto, as there was gradual wear, and the machine had been in substantially the same condition at the time plaintiff began operating it, with the exception of usual wear; and plaintiff learned of its condition in two weeks after he commenced operating it. The crank slipped off the end of the shaft while plaintiff was operating it, about two weeks before he was injured, and frequently so slipped off during the time plaintiff used it prior to his injury, and while so using it. A photograph of the crank on the shaft with a man holding the handle of the crank in his hands as if in the act of turning it, is made a part of the special verdict. From this it appears to be about the same in principle as the crank on a fanning mill, or a grind stone, or that of a modern cider mill. No amount of verbiage or multiplicity of words can obscure the fact that such a crank, is made to slip on and off the shank at pleasure, and that in turning the shaft by hand any one with common sense must know that the power or pressure can be so applied as that the crank will stay on the tenon of the shaft, or that it can be so applied that it will work off. That it is as simple as a hoe, an ax, a spade, or a ladder. There is no finding as to the manner in which appellee applied the pressure or power to the crank, or as to what care he used to prevent its slipping off, or what precaution he observed to avoid injury to him The Standard Oil Company of Indiana v. Helmick. self in case it should slip off. He knew it was liable to slip off, as the facts found show. Whether he was bound to anticipate injury to himself in case it did slip off is quite another question. The burden was on him to show that he was free from negligence contributing to his own injury. This burden he attempted to discharge by the following questions and answers in the special verdict: "Was the plaintiff in any wise at fault in acting in the premises as he did? Ans. No." "Did the plaintiff at all times exercise ordinary care under the circumstances? Ans. Yes." This court, in Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. at p. 161, speaking of the special verdict in that case, said: "In the eleventh and fourteenth findings, it is stated that appellee received the injury without fault or negligence on his part. "In the twelfth finding, it is stated that appellee exercised such care as might reasonably have been expected of him, considering his youth and inexperience. "The fifteenth finding is, that appellant was careless and negligent in allowing the sliver or splint to remain and protrude from the rail. In * * * each and all of these findings in relation to wrong and negligence on the part of appellant, the jury, instead of returning the facts and leaving it for the court to pronounce the law upon those facts, returned conclusions which embody conclusions of law. This they had no right to do, and hence all such conclusions. must be disregarded; and hence there is nothing properly in the verdict showing that appellant was guilty of negligence, etc. parent that the jury * * * * * * * It is ap returned legal conclusions instead of facts. The verdict is therefore defective upon its face, and so defective that judgment cannot be rendered upon it." To the same effect are The Standard Oil Company of Indiana v. Helmick. Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Indiana, etc., R. W. Co. v. Barnhart, 115 Ind. 399; Chicago, etc., R. W. Co. v. Burger, 124 Ind. 275; Board, etc., v. Bonebrake, 146 Ind. 311, and cases there cited. According to these authorities we would be justified in reversing the case on the sole ground that the special verdict fails to find facts showing that appellee was free from contributory negligence. Appellee, however, has placed most of his reliance on the claim put forward, that the facts found bring him within the exception to the general rule that the employe who continues in the service of his employer after notice of a defect in machinery, tools or working place augmenting the danger of the service, assumes the risk as increased by the defect, the exception being that he does not assume such increased risk if the master expressly or impliedly promises to remedy the defect. It may be conceded that such an agreement was found in the special verdict, and also that there was full notice of the defect. The promise of the master is the basis of the exception. Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20-27, and authorities cited on latter page. The ground on which the exception rests is the inducement held out to, and influencing the servant by the master's agreement to repair. If he remains in the service of his master after knowledge of the danger, in the absence of a promise of the master to repair, he assumes the risk. Indianapolis, etc., R. W. Co. v. Watson, supra. In case of such promise to repair by the master, relied upon by the servant, inducing him to remain in the service, the servant may recover for an injury caused by such defect, within such a period of time after the promise as would be reasonable to allow for such repairs to be made. Corcoran v. Milwaukee, etc., Co., 81 The Standard Oil Company of Indiana v. Helmick. Wis. 191, 51 N. W. 328; Indianapolis, etc., R. W. Co. v. Watson, supra; Jenny Electric, etc., Co. v. Murphy, 115 Ind. 566; Burns v. Windfall Mfg. Co., 146 Ind. 261. But here the promise was not to repair generally, which would imply that it was to be done within a reasonable time. The promise was to repair as soon as the present order was run out. How long that would take, whether a week, thirty days, six months, or a year after the promise was made is not found in the special verdict. For aught that appears it may have required thirty days, or six months to run out that order. At the end of that time the promise was to repair. That being so, there could have been no inducement influencing the appellee to remain in the service and work with the alleged dangerous machine during that thirty days or six months, expecting the danger to be obviated as is the case where the promise is to repair generally implying it is to be done within a reasonable time. In Indianapolis, etc., R. W. Co. v. Watson, supra, it was said on page 30: "Now, if there had been a promise to furnish a lantern at the end of the thirty days, that would not relieve plaintiff from the risk incurred by working without a lantern for that thirty days, when, as he says, he had no expectation that a lantern would be furnished." So, in the case before us, there could be no expectation on the part of the appellee that any repairs were to be made during the time required to run out the order on which appellee was at work at the time the promise was made. And, hence, during that time whatever its length was, the promise would not relieve plaintiff from the risk incurred by working without such repairs. Therefore, if the plaintiff's injury occurred during the time required to run out that order, and before it was finished, the promise to repair did not relieve him from the risk VOL. 148-30 The Standard Oil Company of Indiana v. Helmick. incurred in working without the repairs. In other words, it left him as to risks from known dangers within that time as if no agreement to repair had been made, and that is that he assumed such risks. The time necessary to finish that order might have been, as already observed, thirty, or sixty days or even six months after the agreement to repair was made. The burden of showing that the appellee's injury occurred after the expiration of that time, and within a reasonable time thereafter for making the repairs was on the plaintiff, and the failure to find that the injury occurred after the order was finished and within such reasonable time thereafter must be held as a finding against him as to that point. Helwig v. Beckner (Ind. Sup.), 46 N. E. 644; Burns v. Windfall Mfg. Co., supra. But there is no finding here as to what repair was needed, or what repair would obviate the danger. Indeed there was no finding that any repair could possibly obviate the danger. The crank, like a hoe, an ax, a spade, a garden rake, or a ladder is very simple and free from ordinary danger, yet all these implements may be so used as to inflict injury on those who use them. It has been held by this court that so simple a thing as a ladder is not subject to the exception to the general rule above stated whereby an agreement to repair it exonerates the servant from his implied assumption of the risks resulting from its known defects. Meador v. Lake Shore, etc., R. W. Co., 138 Ind. 290. Moreover, it is found that there was no probable danger from the use of the machine. It is held by this court that it is not negligence to fail to foresee and guard against a danger that is wholly improbable. Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404. The facts found in the special verdict are not suffi |