Palms v. Campau, 11 Mich. 109; Wiley v. Allegan Circuit Judge, 29 Mich. 491; Detroit, etc., R. Co. v. Backus, 48 Mich. 582; People v. Thompson, 108 Mich. 583; Culver v. Travis, 108 Mich. 640; Maynard v. Ingham Circuit Judge, 124 Mich. 465; Meads v. Belt Copper Mines, 125 Mich. 456; 3 Am. & Eng. Enc. Law (1st Ed.), p. 64, and cases cited; 6 Cyc. pp. 736, 755, and cases cited; 7 Current Law, p. 611, and notes; 4 Enc. Pl. & Pr. pp. 9, 44, and 45.

In view, however, of the fact that the law is said to permit the taking of immediate possession of condemned land on payment, and pending an appeal, and the showing that serious and irreparable injury would result, it is possible that relief can be afforded by mandamus, although the cases are exceptional where such writ can be used to review interlocutory orders. I therefore suggest and consent to an order to show cause (reserving, however, the question of the propriety of such writ), thinking that the proceedings had before the circuit court may be treated as equivalent to a motion to vacate the order and a denial thereof. A stay of proceedings should accompany the order to show cause.

WALTERS v. WOLVERINE PORTLAND CEMENT CO.

1. MASTER AND SERVANT-PERSONAL INJURIES-ASSUMED RISKS. An employé in a cement factory was given two wrenches and told to tighten the bolts in a tube mill which was not running, and in doing so he lost an arm by reason of a wrench slipping on the bolt and allowing him to fall backward on a similar mill in operation adjoining. He was a man of mature years, in possession of all his faculties, familiar with machinery, had worked in the mill two months, and it was not claimed that he was not acquainted with the use of wrenches or that those given him were defective. The factory was sufficiently light and the mills of simple construction. Held, that the employer was not liable for the injury, the employé having assumed the risk.

That the brightness of the surface of the mill upon which the employé was injured rendered it impossible, when looking from a certain direction, to observe that the mill was running, was immaterial, when he testified that he did not look at it, that he was directed to work at the mill which was not running, and that he selected the one not running without difficulty.

3. SAME-GUARDING MACHINERY-CUSTOM.

It is not negligence to fail to guard certain machinery in the absence of a custom to guard machinery of that character.

Error to Branch; Yaple, J. Submitted April 11, 1906. (Docket No. 52.) Decided May 18, 1907.

Case by Frank Walters against the Wolverine Portland Cement Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Affirmed.

Newberry & Humphrey, for appellant.

H. H. & B. E. Barlow, for appellee.

MCALVAY, J. Plaintiff brought suit for personal in

juries received while employed in and about defendant's cement plant, claimed to have been caused by the negligence of defendant. Defendant was engaged in the manufacture of Portland cement in Branch county. That department of the plant in which plaintiff was employed was known as the "wet end." It is upon the ground floor, and is a space about 75 feet long by 75 feet wide. Over the east end of this space is what is called the "clay floor," under which plaintiff and the other workmen changed their clothing before going to work. Next to this, going west from the east end, is a "slurry vat," made of concrete. It is about ten feet wide east and west, 48 feet long, and 8 feet deep. The walls of the vat rise about 2 feet above the level of the ground floor. "Slurry" is a mixture of clay and marl, of a grayish color, and is like thin mud. This vat was usually full, or nearly full, of this mixture. Directly west of this vat is another vat, 12 feet in width and of like length and depth as the first one. These vats are separated by a heavy concrete wall 6 feet 8 inches thick on its upper surface. About 25 feet from this second vat, and where plaintiff usually worked, were several "slurry" tanks and pumps for pumping the slurry into them, and farther away in the west end of the factory was another row of tanks.

The tube mills, upon one of which plaintiff was injured, are located over the vat first described. There is a battery of five of them placed side by side in a row; their ends supported on wheels, called "trunnions," fixed on bases on top of the east and west walls of the vat. These mills are hollow iron cylinders 16 feet long and 5 feet in diameter, weighing several tons each. They are partially filled with stones, and are used to grind and mix the slurry as they revolve. The west end or head of each of these mills is a heavy iron plate, and is removable. It is fastened to the cylinder by means of bolts through the plate and through a flange on the end of the cylinder. These are -inch bolts, 5 inches long, with right-handed thread, and hexagonal heads and nuts. There are 12 bolts in each

head. The holes in the flange and head which receive the bolts being round, it is necessary to use two wrenches to tighten the nuts. Eight inches from the west end of each cylinder or mill is a heavy iron tire or band 8 inches wide, which runs on the trunnions or wheels which support it. The trunnions are 2 feet in diameter with 8-inch faces. The constant wear of the tires of the mills upon the faces of the trunnions has caused the surface of both to become highly polished. The trunnions are supported by bases 2 feet 6 inches long, upon which are boxes for the bearings of the trunnions. About one-half of the trunnion is concealed by the bases and boxes. The cylinders run at the rate of 24 revolutions, and the trunnions at the rate of 70 revolutions, per minute. The height of the tube mills from the cement foundation on which they rest is 6 feet 9 inches. The distance between the nearest points on the separate mills is 3 feet 9 inches. The distance between the nearest points of the trunnions of the separate mills is 28 inches, and between the nearest points of the bases 21 inches. The accompanying cut drawn to scale shows two of the mills.

These vats are usually filled or partly filled with "slurry," and there was always more or less mud upon the floor and walls of the vats. As we understand it, the mud was taken from the first vat, passed through the tube mills, and discharged into the second vat.

Plaintiff at the time of his injury was 41 years of age. He had worked on a farm until he was nearly 30 years old, and then for six years worked as a section hand on a railroad. Later he worked in and about a flouring mill for six years at packing flour and feed and nailing barrels. On March 18, 1902, he was employed by defendant. He went to work in the west end of the factory as a common laborer, wheeling mud, watching the tanks to keep them from running over, oiling the pumps, and running errands, as directed by Mr. Burkholder, who had charge of that department of the work.

On June 4, 1902, at about 8 o'clock in the forenoon,

plaintiff was in that part of the factory under the clay floor. Burkholder handed him two wrenches and told him to "go and tighten the bolts on the head of that mill standing still, and do it quick, because we are in a hurry. We are getting behind on the mud." He took the wrenches, and went from the east, between the dead mill

and the one north of it, which was running, walking on a plank about a foot wide, towards the west, until he came to the west end, turned south, and passed in front of the west end of the dead mill, and turned in between that mill and the one next south of it, facing to the side of the head of the dead mill upon which the bolts were to be tightened. This mill was standing still, or "dead,” as it is called. It was the third mill counting from the south. All the other mills were running. He saw that the fourth mill was running when he went between it and the dead