
    Elmer D. Kimball, Respondent, v. The O’Dell & Eddy Company, Appellant.
    Fourth Department,
    March 3, 1909.
    Master and servant — negligence — injury by bursting pulley.
    Action by a servant against his master to recover for personal injuries. The plaintiff, in charge of a stationary engine, was injured by the bursting of a wobden pulley which began to revolve át a high rate of speed, owing to .the fact that the governor of the engine ceased to operate. On all the evidence, ■ held, that while the jury were warranted in finding the plaintiff free from contributory negligence, the negligence of the defendant was not sufficiently established.
    Williams, J., dissented.
    Appeal by the defendant, The O’Dell & Eddy Company, from a judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Erie on the 6th day of May, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 14tli day of May, 1908, denying the defendant’s motion for a new trial made Upon the - minutes.
    
      Clinton B. Gibbs [Hubert C. Minard with him on the brief], for the appellant.
    
      Eugene W. Harrington, for the respondent.
   Kruse, J.:

The judgment from which the appeal is taken was recovered for personal injuries, alleged to have been sustained by the plaintiff through the negligence of the defendant. The plaintiff was hurt while at work in the defendant’s mill, where it manufactured blocks for shoe lasts. A wooden drive wheel or pulley burst, and a piece struck the' plaintiff, breaking his leg.

The governor of the engine failed to work, thus permitting the engine to run away (as the plaintiff states it), its speed, being accelerated to such an extent that the pulley burst. The power which operated the governor was transmitted by a belt from a pulley on ■ the main shaft of the engine, up to another pulley connecting the bevel gears of the governor. There was no defect in the governor, but it is claimed that the set screws which held the pulley on the main shaft became loose, so that the shaft revolved without turning the pulley, thus failing to operate the governor.

The plaintiff ran the engine, and it is contended on behalf of the defendant that he himself was not reasonably careful in operating it and in shutting it. down in time to avoid the accident. We think that.question was one of fact, and that the finding of the jury that the plaintiff was free from contributory negligence is sustained by the evidence.

The serious question is, whether the negligence of the defendant has been established. As regards the wheel which burst it seems to have been safe to run at a normal speed, which was 250 revolutions a minute; the plaintiff’s own expert so stated, I do not understand that it is now claimed on behalf of the plaintiff that the condition of the wheel in question w.as such as of itself to afford grounds for holding the defendant liable.

It is contended, however, that -the loose set screw was the primary cause of the accident, and that the defendant was negligent in not discovering and remedying this condition. The difficulty with that claim is, that the evidence fails to show, either that the set screw was loose or, even if it had been, that its looseness could have been discovered by a reasonable inspection before the accident. The engine was a ten-horse-power upright, anfl practically new. It had only been used eight months. It is not contended that the set screw was imperfect or defective, and there is no evidence that there .were indications of the set screw or pulley being loose, either before or after the accident. It appears that the governor suddenly stopped, and that the speed of the engine was immediately accelerated.

The plaintiff, in giving his account of the accident, stated that he started the engine in the morning 'as usual; that he oiled up at half-past nine, stopped for lunch at noon and. started again at one o’clock; that the engine ran all right up to three or four o’clock ; that he shut down about half-past three; oiled the engine, going all over-it.; oiled around the governor; that he then started the engine; went to the fire box; looked around over his shoulder and saw that the belt was standing still; that he jumped for the throt-' tie; that the engine was running very fast — “mighty fast,” as lie states — but that before he succeeded in’stopping it the accident occurred.

The plaintiff undertook to account for the accident by calling an. expert. The expert stated that if the set screw became loose the engine would run away, because the governor would be entirely inoperative. But he further stated that he reached the conclusion from the fact that the belt was standing still; either that the belt was slipping on the lower pulley from some cause, or that the set screw was out of the pulley and let the pulley stand still on the engine shaft; that it must be one of the two things; that a great many things would cause a belt to slip, among others,, getting oil or grease upon it; that when a belt commences to slip it goes very quickly; that it would not be a condition that could readily be foreseen, and it happened frequently almost instantly.

During the course of the examination the defendant’s counsel objected to the assumption that the set screw was loose, upon the ground that there was.no such evidence, whereupon plaintiff’s counsel stated that it would be supplied;. but it was not supplied.

We think the evidence fails to establish negligence against the defendant, and the judgment and order appealed from should, therefore, be reversed, with costs to the appellant to abide the event.

All concurred, except Williams, J., who dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  