son for making an exception to the general rule of damages usually applied in such cases. We are of the opinion that the testimony should have been received. Baker v. Hagey, 177 Pa. 128 (35 Atl. 705, 55 Am. St. Rep. 712). See Stewart v. City of Ripon, 38 Wis. 584; Brown v. Railway Co., 54 Wis. 342 (11 N. W. 356, 911, 41 Am. Rep. 41); McNamara v. Village of Clintonville, 62 Wis. 207 (22 N. W. 472, 51 Am. Rep. 722).

The judgment is reversed and a new trial granted. STEERE, C. J., and MOORE, KUHN, and STONE, JJ., concurred with BIRD, J.

OSTRANDER, J. (dissenting). In this case the court is called upon, as it so often is, to determine the meaning of a rather incoherent statute. Counsel have disagreed as to its meaning, and have in voluminous briefs and in oral argument elaborated their respective contentions. The trial judge, painstaking and careful, has reached a conclusion upon the subject precisely opposed to the one stated in the opinion of Mr. Justice BIRD. There is a consideration to which counsel have given some weight, one which seems to me to be of large importance, which supports the ruling of the trial court, in view of which the various provisions of the statute take on a meaning which otherwise, perhaps, they would not have. The consideration to which I refer is this: That it is apparent from the history of the various acts which were finally consolidated and put together to make up Act No. 285 of the Public Acts of 1909 that the legislature had two distinct purposes in view. One of them was to provide, in the interest of the health of those employed in factories where emery wheels or belts were in general use, in whatever form, that the dust arising from such use should be removed from the factory, purifying the air, and protecting the head, throat, and lungs of the employés. The other was that in factories where emery wheels were not in general use, but where they were in use, and where grindstones were in use, exhaust fans

should be provided for the purpose of carrying off dust, whenever the factory inspector thought it was necessary. The idea finds expression in section 16 of the act of 1909, the provisions of which were relied upon by the trial court, but are not mentioned in the opinion of my Brother BIRD. The consolidation of separate acts brought these provisions into one act. I call attention to the language of the provisos at the end of section 27, and to the fact that they do not in terms qualify the matter of the section, but broadly provide for exemptions from the act and its provisions and conditions. It is matter of common knowledge that emery wheels and belts are used in metalworking and in wood-working factories for buffing and smoothing metal and for smoothing and polishing wood. In this line of work they are in general use, and they give off in use large quantities of particles of fine dust, which may be inhaled. It is matter of common knowledge that emery wheels and grindstones are employed in most establishments where tools are employed and have to be sharpened, and there may be and are factories where, though not in general use for that purpose, emery wheels and belts are in occasional use for polishing metals and wood. I do not think it was the intention of the legislature that hoods and exhaust fans should in all cases be installed in factories where emery wheels and grindstones are used simply to sharpen tools. I do think that the legislature wisely provided for the condition of occasional use, which would produce the same effect as general use, leaving it to the factory inspector to determine whether such use as was made demanded the installation of an exhaust fan to carry off the dust. I do not overlook the arguments which are made, based upon grammatical construction of the language the legislature employed. I am impressed that the consideration which I have stated makes plain language which otherwise would be ambiguous, and aids construction.

The defendant called the commissioner of labor of the State as a witness, who gave the following testimony:

"I know what a buffing wheel is. A buffing wheel is in use continually from the time they start to work until the factory closes, and it is a polishing wheel that grinds fine dust. They polish on it any kind of metal. They make smooth polished-they first buff off the rough of the casting with a coarse wheel, and then trim it up smooth on a finer buffing wheel.

"Q. What kind of dust do they make with a buffing wheel, as to whether it is injurious to the lungs or dangerous to the eyes?

"A. The dust from a buffing wheel is fine dust. From a grinding wheel it is coarser dust. We have to provide for a blower and suction pipe to take care of the dust from a buffing wheel."

He was asked the following question:

"Q. I show you Exhibit 2 in this case, which is a photograph of certain emery wheels in the clutch room of the Industrial Works, where plaintiff was working when he was hurt, and plaintiff has testified that he was hurt while working upon one of those wheels. It appears in this case that those wheels were solid emery wheels, and were used to sharpen the cold chisels which the men used in chipping steel castings. The plaintiff testified that he would be about 55 minutes out of each hour engaged in chipping, and the other 5 minutes sharpening his tools on the wheel; that there was a keg of water standing by it, which appears in the photograph, into which he would dip his chisel as it became overheated. The wheel, from the testimony, was revolving, as I recall it, some six or seven hundred revolutions a minute. I ask you what is the plan and practice of your department as to whether you have treated and applied sections 27 to 30, inclusive, of the factory act to wheels of that nature and description."

The answer was excluded. And the following:

"Q. What do they grind such knives on in planing mills ?"

The question being objected to, the court said:

"The statute specifically excepts planing mills. Is it the object to show that they used solid emery wheels ?" To which counsel for defendant replied:

"That they used solid emery wheels, and used them on it and in exactly the same way they use them in this workshop, and the sparks fly in the same way, and the dangers are indentical."

The testimony was excluded. In my opinion, the testimony of the commissioner of labor might very properly have been received. His opinion as to the proper construction and as to the force and effect of the statute would not be controlling, but, these matters being in doubt, the practical construction of the act by the department charged with its enforcement would be, and ought to be, persuasive of its proper construction. It became immaterial that this testimony was not received because the court reached a conclusion, along other lines, that plaintiff could not, in any event, recover-a conclusion based, however, upon an attempted interpretation and construction of the language employed by the legislature. Aided, as I think it is, by reasons which I have stated, the construction of the act adopted by the circuit judge is the correct one, and I adopt it as a part of this opinion and herewith set it

out:

"On the conclusions that I have reached, I shall make a somewhat summary disposition of this case. At the close of the plaintiff's testimony the defendant made a motion, as it is called in practice, to take the case from the jury on certain legal grounds.

"One of the grounds urged by the defendant was that the provisions of the act counted on in this case did not apply to a solid emery wheel. The argument was at some length upon that point. I heard the argument of counsel on both sides, and there were other questions argued, but at that time I inclined to the opinion that the statutory provisions sued upon did apply to solid emery wheels. As the case progressed, counsel handed up requests just before they argued the case to the jury, and I re-examined the question, and I have come to the conclusion and feel strongly convinced of the correctness of my opinion that the statutory provisions sued and relied upon by the plaintiff in this case do not apply to solid emery wheels.

"I think, under the circumstances, it is fair to counsel and to you that I give a little explanation, in order that

the grounds upon which my action is based may be understood. There is a statute in this State, passed at the last session of the legislature, being Act No. 285 of the Public Acts of 1909, entitled 'An act to provide for the creation of a department of labor, to prescribe its powers and duties, to regulate the employment of labor, to make an appropriation for the maintenance of such department, and to prescribe penalties for the violation of this act.' That act contained sections numbered 27 to 30, inclusive, and these sections contain the provisions which, it is contended, sustain plaintiff's contention in this case. Section 27, which is the important provision, reads as follows:

"All persons, companies or corporations operating any factory or workshop, where wheels or emery belts of any description are in general use, either leather, leather covered, felt, canvas, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with fans or blowers, or similar apparatus, which shall be placed in such a position or manner as to protect the person or persons using the same from the particles of dust produced and caused thereby, and to carry the dust arising from or thrown off by such wheels or belts while in operation directly to the outside of the building or to some other receptacle placed so as to receive and confine such dust: Provided, that grinding machines upon which water is used at the point of grinding contact shall be exempt from the conditions of this act: Provided further, that this act shall not apply to solid emery wheels used in saw mills or planing mills or other wood-working establishments.'

"Then section 28 provides, as to the same wheels, that there shall be applied a hood or hopper.

"Now, as I think, as a grammatical question, as a question of language alone, solid emery wheels are excluded from this definition of wheels. Reading the first part of section 27, which bears upon this question, where wheels or emery belts of any description are in general use, either leather, leather-covered, felt, canvas, paper, cotton, it appears to me, as a matter of grammatical construction and plain language, that the word 'wheel' is qualified by the words which follow, viz., 'leather,' leather-covered,' and 'felt,' etc., referring it to that class of wheels, instead of solid emery wheels. Now, this contention, if correct, is an effectual bar to the plaintiff's recovery in this case, because the plaintiff's recovery is based upon this provision of the statute, and the question all