
    Sidney J. Lucas, Respondent, v. International Paper Company, Appellant.
    Third Department,
    March 24, 1909.
    Master and servant — negligence —^ injury by macliinery — evidence not justifying recovery.
    A verdict cannot be based on surmise or conjecture.
    One employed in a paper mill to remove waste paper Cannot' recover; from his master for injuries received while hacking out of a space four and one-half feet wide between two machines owing to the fact that the paper which he was carrying caught between the rolls of a machine and drew him with it, on the -theory that the accident was caused by the existence of certain electrical conditions-and air currents of which the master should have warned him, if the evidence does not show with sufficient clearness that the accident was due to either of such forces, but is entirely consistent with the theory that it was caused by the negligence of the plaintiff or that the paper was drawn between the rolls by the suction created by the rapidly moving machinery concerning which it was-not necessary' for the master to give warning.. , ,
    Where it appears that-the air-currents blown from the basement against the rollers to harden the paper were directed sometimes to one portion of the rolls and sometimes to another, and there is no evidence that at the time of the accident if whs .hlbwn against the portion of the rolls with which the plaintiff came in cóñtabt, a judgment based on a finding1 that the air currents caused or contributed to the accident will he reversed.
    Chester and Kellogg-, JJ., dissented.
    Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson oil the 1st day of May, 1908, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 4t-h day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry Purcell, for the appellant.
    
      N. F. Breen and Fred A. Baldwin, for the respondent.
   Cochrane, J.:

1 This is an action by servant against master for personal injuries to the former due to alleged negligence of the latter. The negligence found by the jury consisted in not warning or apprising, plaintiff of the existence of certain electrical conditions and air currents by reason of which plaintifE claims he was drawn into rapidly-moving machinery and injured.

Defendant was engaged in the business of manufacturing paper. Part of. the machinery consisted of two parallel sets' of rollers separated by a distance of about four and one-half feet. Each set of rollers was about ten and one-half feet long. One set was known as the dryer rolls, and the other as the calender rolls. The wet paper pulp was fed into the dryer rolls,, the function of which was to dry the pulp as it passed from one roller to the other. After emerging from the dryer rolls at the end opposite to that in which the pulp was fed the paper thoroughly dried passed over to the set of calender rolls, down and over which various rolls it passed and extended to a reel beyond. The top of the calender rolls is eleven and on e-half feet from the floor. There are in the set eight or nine separate rollers varying in weight from 1,800 pounds to oyer two tons. The office of the calender rolls is to smooth and harden the paper as it passes between them.

As the paper passes from the dryér to the calender rolls it sometimes breaks and falls down between the two sets of rollers. Waste pieces of paper from other sources also from time to time accumulate. This broken or waste paper which accumulated between the sets of rollers was called “ broke.” ■ Plaintiff, who was twenty-seven years old, was employed as a broke hustler,” his duty being to go into this space, ten and one-half feet long and four and one-half feet wide between the dryer and calender rolls, gather'up the broke and remove it. He was obliged to emerge from this space between the rollers at the same end at which he entered.

On the occasion of the accident the paper had broken and had accumulated on the floor in the space between the dryer and calender rolls. PlaintifE describes the accident as follows: “ I went in thei’e to take it- out and got caught, that is all there was to it; caught in the calenders. The other men were do-wn at the wet end, I don’t know what doing. Q. How much paper did you grab up when you started to go out ? A. A good big armful. I went in and got my arms around it and started to back out with it and it caught in the calender and yanked me in. This was loose paper that liad fallen in there.” Plaintiff had been doing the. same kind of work for ten or twelve days. During that time the paper had frequently broken and been removed by him. He said: “ It had been, breaking different times right along. It was in the night time i and it had been breaking that night. I don’t know how many times ■ I liad trucked away paper that night, several times; I presume.”

The evidence tends to . show that in the: operation of this machinery electricity was generated of varying degrees of intensity according to the different witnesses. It also appears that there was an apparatus whereby cold air was blown from the basement against some portion of the calender rolls for the purpose of cooling of hardening the paper. It was so-arranged that the.air current could be adjusted to any particular place of the calender.

Under the charge of the court the jury lias found that the bundle of paper caught up by the plaintiff was drawn into the calender rolls either by the attraction, of the electricity generated as aforesaid or by the action of the said air current' or by both of said forces combined, and that plaintiff thereby, without fault on his part, was in turn "brought into contact with the calender rolls and injured, and that the precise ground of defendant’s negligence was that it had not warned plaintiff of the existence of these electrical and air forces.

We think the case fails to show with sufficient clearness that the accident was due to either of those .forces. Obviously, the situation was one which required great-care and attention to duty on the part of plaintiff. Into this space, four and one-half feet wide, he proceeded " with rapidly moving machinery on either side of him extending from the -floor to- a height considerably exceeding his own height. ■ He would have- us - understand that it was not practicable for him to turn around but that lie' walked backward with the broke in his arms. ■ The situation was no different and the danger was no greater than had existed at any time while lie was there at work, and he had frequently performed the'same process in which lie w-as engaged when injured. -Heither the electricity nor the - air current was sufficiently pronounced to make him aware - of its existence although, according to his contention, he had been working in the presence of both more than-ten dayS;. His testimony is entirely lacking in respect -to details which are essential to establish the fact that the-bundle'of . broke was drawn or driven into the rolls by the electricity or air currents assuming the latter to have existed.' The evidence is entirely consistent with the theory that by some unfortunate or inattentive act or omission of himself the broke came in contact with the machinery.

The evidence also leaves it open to the inference that the broke might have been drawn into' the rolls by. the suction usually created by rapidly moving machinery. The existence of this latter force is a matter of common knowledge' concerning which it was not incumbent on defendant to warn plaintiff.

Nor does it satisfactorily appear that the existence of an air current blown from the basement against the. calender rolls contributed to the accident. The evidence clearly shows that this draft of air was sometimes directed to one portion of the calender rolls and sometimes to another. There is no evidence whatever that at . the time of the accident it was blowing against that portion of the rolls with which plaintiff came in contact. Nevertheless the jury were permitted to find that this caused or contributed to the accident.

Nothing is better settled'than that a verdict cannot be based on surmise or conjecture. The burden of proof was on the plaintiff to establish affirmatively. that the accident was caused solely in the manner claimed. This burden he has. failed to sustain.

This case is materially different from Wyman v. Orr (47 App. Div. 136) and Makin v. Pettebone Cataract Paper Co. (111 id. 726). In the first of those cases the record discloses that the plaintiff was minutely and exhaustively examined as to his conduct and actions at the time of the accident, with a' view to excluding any other hypothesis than that the accident was due solely to the electrical current. The question here involved did not exist iii that case, and hence no reference was thereto made in the opinion. The same distinction exists in the Makin case. In both cases the accident happened to boys fifteen and sixteen years old respectively, .who were injured in spaces narrower than the one in question.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Chester and Kellogg, JJ., dissenting.-

Judgment and order reversed and new trial granted, with costs to appellant to abide event. ' ' "  