
    Ida E. Lester, as Administratrix, etc., of Florence V. Lester, Deceased, Respondent, v. Harry Crabtree and Others, Appellants, Impleaded with Edmund Crabtree and Charles B. Grabtree, Defendants.
    Second Department,
    April 24, 1908.
    Negligence — servant killed by cog wheels — failure to show freedom from contributory negligence.
    An administratrix suing to recover for the death of an intestate must show affirmatively freedom from contributory negligence.
    Where there were no eye-witnesses to the accident, mere proof that the intestate was heard to scream, and that her hand was found mangled by the cog wheels of a machine some minutes after she was seen cleaning part of the frame work, standing alone, is insufficient to prove freedom from contributory negligence.
    
      Appeal by the defendants, Harry Crabtree and others, from an order of the Supreme Court, entered in the office of the clerk of the county of Orange on the 19th day of September, 1907, granting the plaintiff’s motion made upon the minutes to set aside the direction dismissing the complaint at the close of plaintiff’s case at the Orange Trial Term, and for a new trial of the action.
    
      Charles C. Nadal [Harold S. Rechnagel with him on the brief], for the appellants.
    
      R. H. Barnett, for the respondent.
   Jenks, J.:

I think that the original disposition of this case was correct, because the plaintiff had failed to adduce any proof that justified the conclusion that her intestate was free from contributory negligence. There was no eye-witness to the accident. While we may infer that the intestate’s hand was caught in the moving cog wheels of the machine and her fingers thereby cut off, all else is but conjecture and speculation aside from the testimony of the sister and fellow-servant of the intestate that two or three minutes after she had seen the intestate cleaning some part of the framework of the machine she heard her sister scream, ran over to her and found her hand maimed. It is tersely and correctly said by Spring, J., in Wilson v. New York Mills (107 App. Div. 99): “ Submission to a jury implies controverted facts or circumstances from which contrary inferences may fairly be drawn. The isolated fact that an employee was killed in the course of his employment does not of itself permit a jury to find that the employee was free from fault contributing to his death. The plaintiff must show affirmatively his freedom from negligence, and if he utterly fails in this essential part of his case, the duty of the court to nonsuit still remains in spite of the Employers’ Liability Act, for the reason that there is no fact to submit to the jury,,”

I think that the order for the new trial must be reversed and the dismissal affirmed, with costs.

Woodward, Hooker, G-aynor and Hiller, JJ., concurred.

Order for new trial reversed, with costs and disbursements, and dismissal affirmed, with costs.  