#### HUFF v. AMERICAN FIRE ENGINE CO.

(Supreme Court, Appellate Division, Fourth Department.

November 17, 1903.)

1. Master and Servant—Injuries—Revolving Shaft—Unguarded Setscrew —Evidence.

In an action against a master for the death of a servant, alleged to have been caused by the master’s negligent failure to güard a setscrew on a shaft as required by the provisions of the labor law, in consequence of which decedent’s clothing was caught by the setscrew, evidence considered, and *held*insufficient to show that deceased was caught by the setscrew.

fc. Same—Contributory Negligence.

In an action against the master for the death of a servant, alleged to have been caused by the master’s negligent failure to properly guard a setscrew on the shaft, in consequence of which deceased’s clothing was caught thereby, evidence *held*insufficient to support a finding that deceased was free from contributory negligence.

Appeal from Trial Term, Seneca County.

*652Action by Margaret E. Huff, as administratrix of James D. Huff, deceased, against the American Fire Engine Company. There was a judgment for plaintiff, and from an order denying a motion for a new trial defendant appeals. Reversed.

The action was commenced on the 9th day of October, 1902, to-recover the damages sustained by the death of James D. Fluff, plaintiff’s husband, alleged to have been caused through the negligence of the defendant, and without any contributory negligence on the part, oí the deceased.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Charles A. Hawley, for appellant.

Frederick L. Manning, for respondent.

McLENNAN, P. J.

The material facts of this case are not in dispute. The defendant was engaged in manufacturing steam fire-engines in the village of Seneca Falls, N. Y., and operating a foundry in connection therewith. So far as important to note, the foundry building in which the accident complained of happened was a-two-story structure, the ground floor of which was used as a molding-room. Directly above it was a scaffold room, so called, 18 feet 8-inches long, and 16 feet .wide. The walls were made of brick, and the floor of iron. It was well lighted, and was reached from the molding room by means of a stairway at the south end. At the extreme north end, and midway between the sides, there was a cupola, or furnace for melting iron. It was a circular brick structure, 4 feet in diameter, and extended from the ground floor up through the-scaffold room and roof of the building. A door in the cupola, directly in front, opened into the scaffold room, the bottom of which was on a level with the floor. In this room iron, coal, and coke were deposited and made ready to be used in charging the cupola; it all being weighed or measured, and the coal and coke placed in separate-piles along the west side of the room, and the iron on the east side. When the cupola was to be filled, a fire was started at the bottom, and the iron, coal, and coke were then shoveled or thrown into it through the door from the scaffold, in proper proportions. A shaft 2 inches in diameter extended along the west side of the scaffold room, about 8 inches from the wall and 4^ feet from the floor, supported and held in place by posts or braces, called “hangers,” resting on the floor. The shaft was made of two pieces joined together by putting a hub or collar on each of the ends to be united. On the end of each hub was a flange, which projected out from the main part of the hub about 1 inch. Next to the flange there was a setscrew, which extended through the hub, making it rigid upon the shaft. The head of the setscrew was seven-eighths of an inch square, and projected outward exactly the sanie distance as did the flange. When the hubs were thus attached, the two ends of the shaft were connected by bolting the two flanges solidly together. By means of a belt extending from a revolving shaft in the molding room, up through the floor of the scaffold room, and onto a pulley upon the shaft in *653question, it was caused to revolve, making about 135 revolutions per minute; and attached to it was a fan or blower connected with the cupola, which furnished a draft, and caused the fire to burn more readily. The shaft, throughout its entire length, wTas uncovered, and in plain view from all parts of the scaffold room. On the 22d day of January, 1902, plaintiff's intestate, a common laborer, 65 years of age, was engaged in the scaffold room, assisting a Mr. Sisson, defendant’s foreman, in charging the cupola. The deceased had never worked in that room before, but had been employed by the defendant in other capacities from the 15th day of December previous. The fire having been started at the bottom of the cupola, the deceased, under the foreman’s direction, had shoveled the proper amount of coal and coke into the furnace, had set down his shovel near the pile of coke on the west side of the room, had gone to ,the easterly side, and was handing iron to Sisson, who in turn threw it into the cupola. The iron was wet or covered with snow, so that when it came in contact with the fire it caused steam to form, which escaped through the cupola door into the scaffold room. Sufficient iron having been thrown into the furnace, the foreman closed the door, stood close in front of it, and was peeking through a crack to see how the fire was burning. At that time, and when last seen by the foreman previous to the accident* the deceased was standing close behind him. Almost immediately thereafter the foreman heard a noise, and, upon looking around, saw the deceased upon the revolving shaft, which was at least seven feet from where the deceased was standing when the foreman last saw him. So far as appears, the deceased had no duty to perform which would lead him to go to the west side of the room, or in the vicinity of the revolving shaft. What led him to do so, or how he got there, is in no manner indicated by the evidence. The shaft was immediately stopped. The deceased was found upon it about midway between the coupling and the pulley—they being several feet apart—in a reclining position, his legs between the shaft and the wall of the building, his head toward the pulley, and the rest of his body extending toward the coupling. His clothing, with the exception of his shoes and stockings, was entirely stripped off, and wound tightly about the shaft, from the pulley to and covering the coupling and the setscrew above described. Fellow workmen removed the plaintiff’s intestate from the shaft, and from the injuries sustained he died soon after.

In the complaint it is alleged that the deceased, “while in and about his work, was caught by said projecting setscrew in a portion of his clothing, and was whirled around by the rapid revolutions of said shaft, and thereby injured and killed”; and it is alleged that the defendant was guilty of negligence, because it failed to guard such setscrew as required by the provisions of the labor law. The case was tried solely upon that theory.

The only questions submitted to the jury were, in effect: First. Was the deceased caught by coming in contact with the setscrew? -Second. If so, was the defendant guilty of negligence in not guarding it, or permitting it to remain in the condition in which it was ? Third. Did the deceased come in contact with the setscrew through his own *654negligence? Fourth. The amount of damage sustained because of his death?

The learned trial court charged the jury:

> “It is necessary, in order to recover, that the plaintiff shall satisfy you that the deceased was killed by the negligence of the defendant in failing to guard this setscrew. Of course, if the deceased was not killed by the setscrew, but by being caught by' some other portion of this shaft, then the statute that the defendant must properly guard setscrews would have no application in this case. Then the case would simply turn upon whether the defendant was negligent in any other way. But this is not pointed out. The only claim made here is that this accident occurred through an unguarded setscrew, so your attention must be confined entirely to that. Unless the plaintiff shows that the deceased was killed through being caught by this setscrew, and that it was negligence upon the part of the defendant to leave it unguarded, there can be no recovery by her, and your verdict must be for the defendant.”

The jury, by its verdict, must necessarily have answered each of the questions submitted favorably to the plaintiff. The correctness of such findings is challenged by the appellant; and it is urged that there is absolutely no evidence which tends to support the proposition that the deceased was caught by the setscrew, or that'it had anything to do with throwing him upon the revolving shaft. We think the appellant’s contention in that regard should prevail. As we have seen, no witness saw the deceased when he was .caught by the shaft. When he was discovered, his body was not touching or near the setscrew or coupling. There is not a word of evidence which indicates that the clothing of the deceased first became fastened to the setscrew, or that it was fastened to it at all. There is nothing to show that it commenced to wind about the shaft at the point where the setscrew was, that the screw was imbedded in any part of the clothing, or that any part of any garment was wound about the head of the screw; and there was nothing about the position of the body which throws any light upon the question as to how or what part of the clothing first became caught upon the shaft. It is a matter of common knowledge that the revolving shaft, where perfectly smooth, might have caught the clothing of the deceased, and caused the injury complained of. How, then, can it be said, upon .the evidence, that it was not caught at such place, but was caught by the screw? We think such conclusion must be the result of pure speculation. It should be remembered in this connection that the setscrew in question was guarded to some extent by the flange, although, perhaps, the jury would have been justified in finding that the defendant had • not fully complied with the labor law in that regard. Is it not quite as likely that the clothing of the deceased was caught by the nuts or heads on the bolts which fastened the two flanges together, as by the setscrew? Yet that was not the question submitted to the jury. They were instructed by the learned trial court that, in order to enable the plaintiff to recover, they must ‘find that the setscrew caused the accident, and they evidently so found. We think there is no evidence which tends to support that conclusion, and for that reason the order must be reversed.

Neither is there- any evidence which tends to prove that plaintiff’s intestate was free from contributory negligence. No one attempts to *655say that the deceased used proper care, or any care, as he went from the point where he was standing in front of the cupola door to the revolving shaft, a distance of 'seven or eight feet, even if we may assume that it was not negligent for him to go there when he had no business connected with his employment which at the time called him to that part of the room. No one attempts to say what the deceased did when he reached the shaft, or why he went where it was. Did he attempt to sit on the revolving shaft or handle it? Did he carelessly walk too close to it, or did he fall against it? An answer to either question must be the result of guesswork and speculation.

In O’Reilly v. Brooklyn Heights R. Co., 82 App. Div. 492, 81 N. Y. Supp. 572, recently decided by the Appellate Division, Second Department, it was said by Mr. Justice Jenks:

> “It is not enough that the facts proven permit an inference, hut it is held that the inference sought must be the only one which can fairly and reasonably be drawn from these facts. Ruppert v. Brooklyn Heights R. Co., 154 N. Y. 90 [47 N. E. 971]. And naturally so, else the jury would be free for guesswork. ’

The rule thus stated aptly illustrates respondent’s contention in the case at bar. The jury was permitted to guess that the plaintiff’s intestate used reasonable care and prudence in going in proximity to the revolving shaft, and that he was caught without any fault or negligence on his part, without any evidence to support that proposition. Whether or not he was free from negligence, the evidence fails to disclose, and for that reason the order appealed from should be reversed.

Order reversed and motion for new trial granted, with costs to appellant to abide event, upon questions of law only; the facts having been examined, and no error found therein. All concur.