
    James Lee, Admr., vs. Reliance Mills Company.
    PROVIDENCE—
    FEBRUARY 21, 1900.
    Present : Matteson, C. J., Stiness and Tillinghast, JJ.
    (1) Negligence. Burden of Proof. Presumptions.
    
    The plaintiff’s intestate was employed by the defendant to tend and run certain grinding-machines. On the morning of the accident, immediately after he had gone to work, a noise was heard by a fellow-workman, and deceased was found unconscious and bruised, his head and one hand on or in the pulley connected with the belt that furnished power to the machine. The belt was broken. Deceased died the same day without ■having recovered consciousness, lío one saw the accident, and no direct IDrooi was offered as to the cause of death.
    After nonsuit of the plaintiff on thé groünd of lack of proof as to the cause óf the'in'júry ánd'death, an'd of due care on the part of'the deceased, on petition for new trial: . • r ■
    
    field,, ,110 error, .....
    (2) Presumption of Due Care. ■. . . . , , . ■ ,
    
      Held,- further, that even if the-plaintiff, was entitled to a presumption under the proof that deceased was,in the exercise-of due care at the time of the accident, in the absence of proof as to the cause of the injury it would not establish a case on which lie could go to the 'jury. ' ' ” '
    Trespass on the Case for negligence. The facts are' stated in the opinion. - For previous,opinionin'this case see 21 R. I. 322.- Heard on petition of-plaintiff for a new trial. -New trial denied. ' ■ ' -
   Tillinghast, J.

, The material facts- which appear from the testimony, in this case.may be summarized as follows:

F,rank Lee, the. plaintiff’s intestate, .was einplo.yed by the-defendants to tend and,run certain grinding-machin.es:used for grinding grain at their mill. His duties consisted in start-, ing and stopping the machines and in keeping the,-hoppers,-' through which the grain was-fed to the grinding parts of .-the machines, free from' obstructions which would tend tp choke them up. He had been employed in. this capacity for. about five years. On the morning of October 4, 1897, just, as the mill was starting up, Lee went about his work as usual. Immediately afterwards, Luke Quigley, who worked on the same floor with Lee, heard a noise, probably caused by the breaking of the belt on the machine where Lee was at work, and instantly gave the bell to stop the engine. ■ About half a minute afterwards, as he testifies, he found Lee in an unconscious condition, with' his head and left hand oh or in the 'pulley, which was still moving, and his right hand in, the hopper. There was a slight cut on the left side of his head, there was bipod on hjs facé, and his left hand, was bruised, twisted, and bleeding. He never recovered- consciousness, and died the same day at the Rhode Island Hospital: The belt which ran the machine where he. yvas working was found to be broken, and was lying on the floor in. the room helo.w'.. ■ It .was a six-inch double belt, made of rawhide and -fastened, together with copper rivets, and these were -found to-'havp. been, pulled out, and the break in the belt was-, at-this place. As we understand, the.testimony, alth.ongh.it is not .very explicit upon this point, the belt came up through the floor and-passed over the pulley,..which..is near .the hopper, and then hack again, through the floor, so that .only a .very small sec-, tion of the belt worild be above, the surface, of the floor where the deceased was working. The testimony-shows that, occa.sionally the grinder gets; clogged or. choked, causing it to. stop, and that in such case the person who.is .tending it. puts his hand into the hopper down- to .the point where the feed goes through, removes the obstruction, and. thereby caiises the grinder to start up again. The regular orders were .never to start the grinders running until the full speed was on..

The deceased was .twenty,-three years of, age. No one witnessed- the accident-or .undertakes to tell how it .happened, and no proof was offered, as to the extentjof his injuries or. as to the cause of his death, except as aforesaid. ; It was agreed, however,, .by counsel at. the commencement of the trial that, the injuries received at this time were the cause of his death. , . , ■ ,

At the close of the plaintiff’s testimony the court, on motion of the defendant’s attorney., granted a nonsuit on the ground-of. lack of proof as to the cause of the injury and. death of deceased, and also .for lack of proof of due care on the part of deceased. The plaintiff excepted to the ruling, and now moves-for a -new trial, on the ground that the ruling w.as erroneous. , He contends that the testimony offered entitled him to go to the jury, in. that -it shows, negligence on the part of. defendants, as alleged in his declaration, in not providing a proper safeguard -for the belt in question, as required by Gen. Laws, R. I. cap..68, §6; and also that the testimony shows the exercise of- due care on the part of. Lee. His first claim is, in short, that the evidence shows that Lee was engaged in cleaning the hopper when the power belt which operated the machine broke and struck him on the left side of his head and body so that he was hurled violently against a portion of the machinery, and that his left hand was drawn into the pulley over which said belt was running.

His second claim is that the testimony shows that at the time of the accident Lee was engaged in clearing the machine, and that his exclusive attention was engaged therein, and that while so engaged he was “ struck or caught ” by the belt which ran the machine, and hurled violently against the machine and fatally injured ; and also that the testimony shows the exercise of due care on his part at the time of the injury. And, further, that the belt and shafting were wholly unguarded, and that by this reason Lee was “caught or struck ” by the belt.

We fail to see that either of the theories advanced as to the manner in which the injuries were received is sustained by the evidence. They rest upon conjecture and not upon testimony. Take the first theory, namely, that while operating the machine he was struck by the broken belt and hurled violently against some portion of the machinery. What basis is there for it ? Mainly this : the belt was found to be broken, and he was probably near to it when it parted, and there were marks upon his person showing that in some way he bad been injured. But the belt came through the floor from below, and, passing over the pulley, which was from twelve to twenty inches above the floor, returned, as aforesaid; so that the natural inference would seem to be that when it broke it would immediately fall to the room below, where it was, in fact, found just after the accident. If he was caught and hurled violently against the machinery, how did it happen that when found he was about in his usual place, with his right hand in the hopper ? But even assuming that he was struck by the belt, as claimed, where was he and what was he doing at the time? Was the belt out of order, and was he attempting to interfere with it in any way ? Did he start the grinder in operation before the full speed was on, and thereby bring an unusual strain upon the belt and thus cause it to break? Did he accidentally fall against the pulley when the belt broke ? These and many other questions which might be asked show that the accident did not necessarily happen in either of the ways relied on by the plaintiff, and also that it is quite impossible to tell with any considerable degree of certainty how it did happen. If we take the plaintiff’s second theory, namely, that while clearing the machine Lee was ‘ ‘ struck or caught ” by the belt and hurled violently against the machine and fatally injured, it is at once apparent that this, too, is merely a conjecture or guess. Indeed, counsel practically admits that this is so when he argues that deceased was either “struck or caught” by the belt. But can it be properly contended that even if it appears that he was either struck or caught by the belt and thereby received injuries which resulted in his death, the defendants can be held responsible therefor ? We think not. It must alfeo be made to appear that they failed to discharge some duty which they owed to the deceased, and this is not shown in the testimony. It is true that the plaintiff alleges in his declaration that the belt and shafting were not properly guarded, as required by statute, but the only evidence offered in su'pport of this allegation was by the witness Luke Quigley, who said, in answer to the question “Was there any protection to that belt?” “Same as there is to-day.” But what that was does not appear. But even assuming, for the purposes of the argument, that the belt and shafting were not properly guarded, and that the defendants failed in discharging their dirty to Lee in this regard, it does not appear that the accident happened on this account, or that it would not have happened if the belt had been properly guarded. For, as already indicated, it does not appear how it happened.

Conceding, then, as claimed by plaintiff’s counsel, that under the law as laid down by this court in Judge v. Narr. Elec. Lighting Co., 21 R. I. 128 the- plaintiff was entitled to a presumption under the proof that deceased was in the exercise of due care at the time he was injured, still, as it does not appear that -defendants., had. not discharged their-duty towards him, the case was not made .out: ¡ ■ .

John W. Hogan, for-plaintiff.

:- Walter B. Vincent, for defendant.

Retition.for new trial denied,.and.case remitted for judgment. ..... 
      
       Gen. Laws B. I. cap. 68, § 6 : “All belting and gearing shall be provided with proper safeguard.”
     