Sandusky County. his parents and was a mere beginner at the work with a probability that his wages would be increased as time went on, a verdict of $2,950 is not excessive. ERROR to Sandusky common pleas court. Bartlett & Wilcox and J. B. Stahl, for plaintiff in error. Love & Culbert, for defendant in error: Death of inexperienced boy caused by dangerous or defective or unsafe machinery or appliances. See Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739]; Shearman & Redfield, Negligence (5 ed.) Sec. 219, page 389, citing Hamilton v. Railway, 54 Tex. 556; Goff v. Railway, 36 Fed. Rep. 299; Taylor v. Railway, 41 W. Va. 704 [24 S. E. Rep. 631]; Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187], citing, Atlas Eng. Works v. Randall, 100 Ind. 293 [50 Am. Rep. 798]; Hill v. Gust, 55 Ind. 45; Hawkins v. Johnson, 105 Ind. 29 [4 N. E. Rep. 172; 55 Am. Rep. 169]; Mann v. Print Works, 11 R. I. 152; Lalor v. Railway, 52 Ill. 401 [4 Am. Rep. 616]; Coombs v. Cordage Co. 102 Mass. 572 [3 Am. Rep. 506]; Chicago & N. W. Ry. v. Bayfield, 37 Mich. 205; Dowling v. Allen, 74 Mo. 13 [41 Am. Rep. 298]; Wood, Mas. & Serv. Secs. 349, 352, 439; Beach, Contr. Neg. Sec. 132; Thompson, Negligence 975, 976, 977, 979, 1016; Pierce, Railroads 378; Thomas, Negligence 856, 857, 858; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739]; Cole v. Railway, 71 Wis. 114 [37 N. W. Rep. 84; 5 Am. St. Rep. 201]. There is no presumption that the decedent assumed the risk. Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187]; Ohio & M. Ry. v. Hammersley, 28 Ind. 371; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739]; O'Connor v. Adams, 120 Mass. 427; Benzing v. Steinway, 101 N. Y. 547 [5 N. E. Rep. 449]. Duty of defendant to provide for the safety of its employes. Lake Shore & M. S. Ry. v. Lavalley, 36 Ohio St. 221; Railway v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Railway v. Henderson, 37 Ohio St. 549; Dick v. Railway, 38 Ohio St. 389; Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]; Shearman & Redfield, Negligence (5 ed.) Secs. 185, 186, 194, 194a, 218; Black, Law & Pr. Acc. Cas. Sec. 67. Illinois Steel Co. v. Schymanow- Special orders given by master. ski, 59 Ill. App. 32; Pitts. C. & St. L. E. Rep. 187]; Crowley v. Cutting, 165 Mass. 436 [43 N. E. Rep. 197]; Turner v. Railway, 40 W. Va. 675 [22 S. E. Rep. 83]; Wood, Mas. & Serv. Par. 349, page 714; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 558 [21 L. Ed. 739]; Wood, Mas. & Serv. Sec. 366; Van Duzen Gas & Gas. Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998]; Patter Knife & Shear Co. v. Hathaway. son v. Railway, 76 Pa. St. 389 [18 Am. Rep. 412]; Breckenridge Co. v. Reagan, 12 Circ. Dec. 50; May v. Smith, 92 Ga. 95 [18 S. E. Rep. 360; 44 Am. St. Rep. 84]; Hinckley v. Horazdowsky, 133 Ill. 359 [24 N. E. 421; 8 L. R. A. 490; 23 Am. St. Rep. 618]; Wharton, Negligence Sec. 216. Duty of employe of minors and inexperienced employes. Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]; Cooley, Torts 652; Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640]; Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Thompson, Negligence 978; O'Connor v. Adams, 120 Mass. 427; Shearman & Redfield, Negligence (5 ed.) Secs. 73, 203, 219, 291a, 333, 334; Hickey v. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286]; Pitts. C. C. & St. L. Ry. v. Moreland, 12 Circ. Dec. 612; Railway v. Moreland, 60 Ohio St. 604 [54 N. E. Rep. 1107]; Mather v. Rillston, 156 U. S. 391 [15 Sup. Ct. Rep. 464; 39 L. Ed. 464]; Missouri Pac. Ry. v. Callbreath, 66 Tex. 526 [1 S. W. Rep. 622]; Atlas Eng. Works v. Randall, 100 Ind. 293 [50 Am. Rep. 798]; Sullivan v. Manufacturing Co. 113 Mass. 396; Western Union Tel. Co. v. McMullen, 58 N. J. Law 155 [33 Atl. Rep. 384; 32 L. R. A. 351]; New York Biscuit Co. v. Rouss, 74 Fed. Rep. 608 [20 C. C. A. 555; 45 U. S. App. 45]; Baxter v. Roberts, 44 Cal. 187 [13 Am. Rep. 160]; Wheeler v. Manufacturing Co. 135 Mass. 294; Coombs v. Cordage Co. 102 Mass. 572 [3 Am. Rep. 506]; Stewart v. Bridge Co. 8 Circ. Dec. 454 (15 R. 601); 7 Am. & Eng. Enc. Law (1 ed.) 830, 834; Houston & Tex. Cent. Ry. v. Marcelles, 59 Tex. 334; Parkhurst v. Johnson, 50 Mich. 70 [15 N. W. Rep. 107; 45 Am. Rep. 28]; Demars v. Manufacturing Co. 67 N. H. 404 [40 Atl. Rep. 902]; Mullin v. Horseshoe Co. 105 Cal. 77 [38 Pac. Rep. 535]; Jones v. Mining Co. 66 Wis. 268; 28 N. W. Rep. 207 [57 Am. Rep. 269]; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26]. Contributory negligence. Railway v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Dick v. Railway, 38 Ohio St. 389; Clev. C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]. Measure of damages. Cincinnati St. Ry. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Grotenkemper v. Harris, 25 Ohio St. 510; Illinois Cent. Ry. v. Slater, 129 Ill. 91 [21 N. E. Rep. 575; 6 L. R. A. 418; 16 Am. St. Rep. 242]; Birkett v. Ice Co. 110 N. Y. 504 [18 N. E. Rep. 108]; Gulf, C. & S. F. Ry. v. Compton, 75 Tex. 667 [13 S. W. Rep. 667]; Thompson v. Johnston Bros. Co. 86 Wis. 576 [57 N. W. Rep. 298]; Johnson v. Railway, 64 Wis. 425 [25 N. W. Rep. 223]; Ewen v. Railway, 38 Wis. 613; Potter v. Railway, 21 Wis. 372 [94 Am. Dec. Sandusky County. 548]; Potter v. Railway, 22 Wis. 615; Black, Law & Pr. Acc. Cas. 333, 334, 335; Schrier v. Railway, 65 Wis. 457 [27 N. W. Rep. 167]; Missouri Pac. Ry. v. Henry, 75 Tex. 220 [12 S. W. Rep. 828]; Pineo v. Railway, 34 Hun (N. Y.) 80; Chicago, etc. Ry. v. Becker, 84 Ill. 483; Union Pac. Ry. v. Dunden, 37 Kan. 1 [14 Pac. Rep. 501]; Cooper v. Railway, 66 Mich. 261 [33 N. W. Rep. 306;11 Am. St. Rep. 482]; Hoppe v. Railway, 61 Wis. 357 [21 N. W. Rep. 227]; Houghkirk v. Canal Co. 92 N. Y. 219 [44 Am. Rep. 370]; Turner v. Railway, 40 W. Va. 675 [22 S. E. Rep. 83]; Hinckley v. Horazdowsky, 133 Ill. 359 [24 N. E. Rep. 421; 8 L. R. A. 490; 23 Am. St. Rep. 618]; Ashtabula Rapid Trans. Co. v. Dagenbach, 11 Circ. Dec. 307; Morris v. Railway, 63 App. Div. 78 [71 N. Y. Supp. 321]; Morris v. Railway, 170 N. Y. 592 [63 N. E. Rep. 1119]; San Antonia St. Ry. v. Watzlavzick, 28 S. W. Rep. (Tex. Civ. App.) 115; Austin Rapid Trans. Ry. v. Cullen, 29 S. W. Rep. (Tex. Civ. App.) 256; Carnahan v. Ashworth, 31 S. E. Rep. 65, 66; Connaughton v. Printing & Pub. Assn. 73 App. Div. 316 [76 N. Y. Supp. 755]; York v. Railway, 28 Mont. 574 [69 Pac. Rep. 1042]; Cicero & Pac. St. Ry. v. Boyd, 95 Ill. App. 510; McDonald v. Railway, 36 Misc. 703 [74 N. Y. Supp. 367]; Atchison, T. & S. F. Ry. v. Van Belle, 26 Tex. Civ. App. 511 [64 S. W. Rep. 397]; Twist v. Rochester (City), 165 N. Y. 619 [59 N. E. Rep. 1131]; Eginoire v. Union Co. 112 Iowa 558 [84 N. W. Rep. 758]; Southern Queen Mfg. Co. v. Morris, 105 Tenn. 654 [58 S. W. Rep. 651]; Taylor, B. & H. Ry. v. Warner, 60 S. W. Rep. (Tex. Civ. App.) 442; Lee v. Publishers, Knapp & Co. 155 Mo. 610 [56 S. W. Rep. 458]; Heinz v. Railway, 91 Hun 640 [36 N. Y. Supp. 675]; Omaha (City) v. Richards, 49 Neb. 244 [68 N. W. Rep. 528]; Toledo Consol. St. Ry. v. Mammet, 6 Circ. Dec. 244 (13 R. 591). Sufficiency of petition. Johnson v. Railway, 7 Ohio St. 336 [70 Am. Dec. 75]; Weidner v. Rankin, 26 Ohio St. 522; Steel v. Kurtz, 28 Ohio St. 191; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; 2 Kinkead, Code Pleading 839, 840. HULL, J. This action was brought by the defendant in error to recover damages against the Jackson Knife and Shear Company, for the death of Jesse Helmic, who was a minor and whose injuries it is claimed were due to the negligence of the defendant. And when I say defendant in this case, I mean the defendant below, and the same as to plaintiff. The deceased was about seventeen years of age and he was at work in the shop of the defendant, and it was claimed that he was put at a piece of dangerous work without being given proper instructions by the defendant or by its foreman, as to how the work should be done, or Knife & Shear Co. v. Hathaway. warning as to the danger incident to doing the work. While engaged in the performance of this work, he was killed, and the action was brought by the administrator to recover damages. The defendant denied all negligence on its part and claimed that the deceased had full knowledge of the danger of the work in which he was engaged, and that instructions were not necessary to avoid the danger; that he had been engaged in similar work prior to that time. The facts briefly stated are these: The deceased had been a resident of the state of Michigan, and through his brother-in-law, the administrator in this case, he came to Fremont and was employed in the defendant's factory. He went to work in what was known as the "drop forge department," of the factory, being at that time a boy about seventeen years of age, as has been stated. A few weeks after he entered the employment of the defendant a belt that was necessary in the running of the machinery of the factory, slipped off a small wheel or pulley as it is called, which was some distance from the floor, the belt running over this small wheel and also a larger wheel lower down. He was asked by Mr. Kelley the foreman, if he thought he could put the belt on and he said he thought he could, and he endeavored to reach it, but was unable to do so, and Mr. Kelley told him to get a stepladder so that he might get up more readily to where the difficulty was. Helmic went away for the stepladder, and while he was gone Mr. Kelley's attention was attracted to the work of another employe, or perhaps a machine, that was out of repair, and did not observe he says, young Helmic, when he returned with the stepladder. He continued to observe the operation of the machine and did not know Helmic had returned until he heard him make an outery, and then heard his body as it struck the beams of the building. It appears that Helmic had returned with the stepladder, and gone up on it to put the belt onto the pulley, and probably while he was putting it on, the belt after he got it partially on it, tightened and then flew off suddenly, and caught hold of his arm and perhaps some other part of his body, at least his arm, and wrapped itself around his arm and around the shaft, and he was whirled rapidly around with the shaft, which was revolving at the rate of about three revolutions a second, his body and feet striking the beams and injuring him so that he died a short time after he was taken down. The plaintiff claims as I have stated, that Helmic was inexperienced in this work, and was entitled to instructions and warning. That he did not receive any and that this was negligence on the part of the defendant. Sandusky County. A verdict was returned for the plaintiff for $2,950 and judgment entered for that amount. It is claimed by plaintiff in error that the petition does not state a cause of action and that therefore no evidence should have been admitted, and this objection was made upon the trial and exceptions properly lodged. The claim is based upon the fact that there is no allegation in the petition that the next of kin of Jesse Helmic sustained pecuniary damages by his death, that it fails to state that the parents and next of kin of the deceased Jesse Helmic sustained any damage by reason of his death. And it is claimed that the petition is deficient in this respect, and fatally defective-that such an allegation is necessary. The action is brought under Lan. R. L. 9673 and 9675 (R. S. 6134 and 6135), which authorize the bringing of an action by the personal representative of the deceased in case of death by neglect or wrongful act, for the benefit of the wife or husband or father or mother or next of kin. We think that this question, the question raised here, has been decided by our Supreme Court in a case in Johnston v. Railway, 7 Ohio St. 336 [70 Am. Dec. 75], where the Supreme Court say in the syllabus: "An action may be maintained by the administrator of a deceased person, for the benefit of the next of kin of the deceased, though he leave no widow nor children, and though the petition does not contain a statement of special circumstances rendering the death a pecuniary injury to them. Such special circumstances can affect only the amount of the recovery." On page 339, of the opinion, the court say: "A right of action is given by this statute to the personal representative of the deceased, merely as a trustee, and for the exclusive benefit of the widow and next of kin. Hence, it would seem to be clear, that in order to the maintenance of the action, there must be a widow or next of kin, to whom the amount recovered could be distributed. And so it was held, under a similar statute of New York, in Lucas v. Railway, 21 Barb. 247. "But if there be persons to whom the beneficial interest in the judgment to be recovered can vest, then the only other conditions to which the right of action is subjected by the terms of the statute, are, first, that the death shall have been caused by such wrongful act, neglect, or default, as would (if death had not ensued) have entitled the party injured to maintain an action against the defendant, and recover damages in respect thereof; secondly, that the action be brought by and in the |