#### Samulski, Respondent, vs. Menasha Paper Company, Appellant.

*October 26*

November *14, 1911.*

*Trial: Questions for jury: Appeal: Review: Harmless errors: Evidence: Weight: Physical facts: Verdict not to be founded on conjecture: Master and servant: Injury from defective machinery: Contributory negligence.*

A shaft six feet or so long was located about two and one-half feet from the floor. A 14-inch x 7-inch tight and a companion loose pulley were thereon near one end and a 4-foot 500-pound iron disk on the other, having on the out face knives fastened thereto by bolts projecting through about 2-inch shoulders on the back and there held by burrs. Other 2-inch fan-shaped projections were on the back. The disk, at the back, was cased six inches therefrom and around the rim a hand hole being therein for use in removing knives as necessary. The whole weighed some 800 pounds. At speed, it turned- 700 times per minute by a 30-foot x 6-inch belt from a line shaft below. The belt was kept on the loose pulley, as desired, by a stick placed close under and near the opening between the pulleys, resting on the belt box between two nails driven therein on the up side of the belt at one end and against one nail driven therein on the opposite side of the box and down side of the belt toward the tight pulley, and the belt being shifted to the loose pulley, the shaft would turn some five minutes preventing for then removal of the knives. The stick being in position, as on the particular occasion, the belt would not shift. Plaintiff, the ■operator, had a hand and arm injured while attempting to loosen the burrs. The disk continued to move for a time, then stopped and remained so, all things being in proper position. Some three minutes were accounted for between plaintiff’s shifting of the belt and the injury. He said the disk stopped theretofore and thereat suddenly started. It had never before done so under the particular circumstances though plaintiff thought it could. The court approved a jury finding that a loose belt and inefficient prevention of automatic shifting caused the injury. Plaintiff took judgment, the court refusing judgment for defendant notwithstanding the verdict. A pictorial representation of the machine will be found facing page 285.

*286*Held,*that the following legal.principles apply:

1. If there is fair room on the evidence for diverse conclusions as to the ultimate fact in a legal action, which is right is for the jury, and reasonable doubts as to whether the case is within the province of the court or that of the jury should be resolved in favor of the latter.

2. Under the foregoing, the decision of the trial court should not be overruled except upon its appearing by the record to be manifestly wrong.

3. The testimony of a witness or finding of a jury, contrary to manifest physical situations, common knowledge, or conceded facts, is efficiently impeached thereby.

4. A physical fact, existent as matter of common knowledge or established by evidence beyond room for fair controversy, cannot be overcome by human testimony, opinion, or theorizing.

6.The verdict of a jury to be warranted, must be grounded on reasonable certainty as to probabilities arising from fair consideration of the evidence, not on conjecture or guessing, or possibilities.

6. The party on whom the burden of proof rests not being able by evidence to remove the case from the field of conjecture into that of probability, with greater certainty than to leave one to choose between equally strong conflicting probabilities, no jury question is raised.

7. Stability of trial determinations is of such importance, reasonable doubts should be resolved in favor thereof, technical defects be ignored, and errors however numerous or plain or inexcusable, passed as inconsequential unless, manifestly, had they not occurred, the result might probably have been materially more favorable to the party complaining.

8. If facts appear within the above rule rendering evidence from the mouths of witnesses to the contrary incredible, theorizing upon such evidence is mere conjecturing, not to be indulged in by trial courts even by their burdening the jury in respect to the matter.

9. In the circumstances stated, a case dependable upon conclusions inconsistent with verities, should be taken from the jury on motion and a verdict resulting contrary to such verities set aside and the case dismissed on request therefor.

10. On the facts fully established as indicated above in the light of the stated legal principles there was no legitimate basis for the vital findings in favor of the plaintiff and the verdict should have been corrected accordingly and judgment rendered thereon for the defendant.

[Syllabus by Marshaix, J.]

*287Appeal from a judgment of the circuit court for Eusk county: James Wickham, Circuit Judge.

*Reversed.*

Action to recover for a personal injury. The pleadings were as indicated by the following which the evidence established, or tended to:

Plaintiff, a man about twenty-seven years of age of average intelligence and experience, while in the employ of defendant operating a machine, called a barker, was severely injured in his left hand and arm. The general nature of the machine was this: A heavy iron disk-shaped wheel, about four feet in diameter, carried at the end of a shaft, there being on the outer and exposed face four knives about eight inches long, fixed thereto and set out sufficiently to engage and plane off bark from blocks of wood when pressed against them for that purpose, which disk turned, when at full speed,-700 or more revolutions per minute. Knives, from time to time, were required to be removed and sharpened. A cover over the back of the disk and some five inches therefrom forming a casing extending around but clear of the rim of the disk. An opening in the back of the cover sufficiently large to enable a person to insert his hand through and, with a wrench, turn off the burrs .from the bolts holding the knives in place. Projections on the back side of the disk, standing out three to four inches, rendered it exceedingly dangerous to so insert a hand for loosening the burrs without the disk being at rest. A shaft stationed some two and one-half feet from the floor. A tight and companion loose pulley seven inches on the face and about fourteen inches in diameter — by means of which and thejr connections the disk was operated, — located on the shaft three feet or so from the back of the disk, such pulleys being far enough apart to clear each other and the tight one being nearest the disk. A drive belt some thirty feet long, six inches wide, of heavy leather, reaching the pulleys from the main drive shaft below the floor.

The disk, weighing some 500 pounds, in use, revolved with *288such velocity and force that, if, when at full speed, the belt was moved to the loose pulley it would continue to turn for some time. Upon moving the belt from the tight to the loose pulley to stop the machine, a piece of wood in the form of an ordinary broomstick, was laid on the boxing of the pulleys, which extended from the floor belt opening to within an inch, more or less, of the pulleys, and just under the clearance between them with the end on the up or slack side of the belt between two large nails, driven into the edge of the box far enough apart to receive it below the heads, they being bent in to prevent it from raising, materially, or rolling, and with the other end resting against a nail driven into the edge of the box on the opposite side, and on the side of.the stick toward the tight pulley. The stick so placed, with the nails in position to retain it and properly performing their office, and the belt on the loose pulley, efficiently prevented such belt from engaging the tight pulley and giving motion thereto. In case of the nails, particularly either or both on the side of the stick toward the tight pulley, being bent over in such direction, the stick could roll somewhat and raise up a little, permitting the belt to creep toward the tight pulley, and possibly reach or engage it slightly. The stick could not raise up much as it only slightly cleared the pulleys.

Plaintiff, on the occasion in question, understood the mechanism of the machine, the use of the stick, as aforesaid, to prevent the drive belt from unexpectedly starting the disk to revolve, and danger of attempting to remove the knives while the disk was in motion. The nails on the up side of the belt were bent over a little towards the drive pulley and spread sufficiently at the top to permit of the stick rolling or raising up a little. It could not raise to the top of the nails by reason of the interference aforesaid. Plaintiff had operated the machine for a considerable time and taken off the knives, as required. He knew the danger of starting to do it while the disk was in motion. On the particular occasion he placed *289the belt on tbe loose pulley, as usual, and put tbe broomstick in place. He testified tbat after tbe disk stopped revolving be inserted bis baud, bolding tbe wreficb, tbrougb tbe opening to loosen tbe knife bolt. In sucb circumstances there had never been an unexpected starting of tbe disk to revolve either in bis experience or tbat of any other person. As be was in tbe act of loosening a burr tbe disk suddenly started, catching bis band and causing tbe severe injury complained of. Tbe belt was somewhat loose, as was claimed, allowing it to raise a little, intermittently, and move a little from side to side on tbe pulley. It touched tbe stick on tbe downward side of tbe belt but not on tbe upward side. Immediately after tbe accident tbe stick was found in place, tbe belt on tbe loose pulley and tbe disk still moving. Two or three minutes thereafter it came to a rest without any change in tbe belt or stick. Plaintiff, as be testified, just before be proceeded to loosen tbe knife bolts, complained to tbe foreman about tbe belt being too loose, was requested to proceed, and given assurance tbat tbe belt would be fixed.

Tbe cause was submitted to tbe jury, resulting in these findings in addition to those relating to tbe injury and tbe amount of damages: Tbe belt was running on both pulleys when plaintiff was injured. Tbe stick used to prevent tbe belt from slipping from tbe loose to tbe tight pulley was in its usual position between tbe nails when plaintiff was injured. Tbe belt was defectively loose. Defendant failed to exercise ordinary care in respect thereto and tbe arrangement to prevent tbe belt from automatically slipping from tbe loose pulley so as to start tbe other. Sucb fault was tbe proximate cause of plaintiff’s injury. Prior to tbe injury plaintiff notified tbe foreman that tbe belt was defective and requested him to repair it. Tbe foreman promised to do so. Plaintiff continued to work relying thereon. He did not remain a longer time than was-necessary to enable defendant, acting reasonably, to make tbe repairs. Plaintiff was free *290from contributory fault. Tbe disk bad stopped moving by its own momentum before plaintiff was injured. He did not assume tbe risk of tbe disk unexpectedly starting by reason of tbe belt slipping from tbe loose to tbe tight pulley.

Damages were fixed by tbe jury at $5,000, and judgment was rendered on tbe verdict in plaintiff’s favor; numerous exceptions being saved in defendant’s bebalf for a review by tbis court, including an exception to a refusal of judgment in tbe latter’s favor notwithstanding tbe verdict, and refusal to correct tbe verdict so as to find in harmony therewith.

For tbe appellant there was a brief by *Doe ■& Ballhorn,*and oral argument by *J. B. Doe.*

For tbe respondent there was a brief by *Thomas & Oarow,*attorneys, and *Stiles &*Devaney, of counsel, and oral argument by *J. W. Garow. ■*

Maeshaix, T.

Only familiar legal principles are involved in tbis appeal.

Tbe case has been studied and a conclusion reached with full appreciation, it is thought, of tbe rule that if, in a legal action, there is fair room as to a matter of fact for a conclusion on tbe evidence either way, which is correct is a jury question, not to be invaded by judicial interference and of such importance that reasonable doubts should be resolved in favor of tbe decision rendered. But whether there be such doubt when tbe point is raised on motion, is a judicial question which is as exclusively within tbe province of tbe trial judge to solve, as truth involved in conflicting evidence is within that of tbe jury. Efficient discharge of duty in tbe former province, is as important as such discharge in tbe latter, and often calls for tbe highest degree of judicial courage. That reasonable doubts should be resolved in favor of the one is but little less important, if any, than that they should be so resolved as to the other. Hence the necessity for, the logic of, and the great dignity which should be- accorded to, — as *291this court has often declared,- — that other rule, going hand in hand, so to speak, with the former, that the trial judge’s determination, in the absence of mistake of law, using that term in the technical sense, should not be overturned on appeal, unless clearly, prejudicially, wrong. That respect should thus-be. accorded, also, because, from the very nature of the case, the trial judge who sees the witnesses and hears them testify, is, in general, the best judge of whether the given matter might fairly be decided for the plaintiff or defendant.

Notwithstanding the foregoing, there is this other rule, which is sometimes, perhaps, as the history of cases in this court shows, not appreciated below or overlooked altogether: The testimony of a witness or finding of a jury, contrary to unquestionable physical situations, or common knowledge, or conceded facts, is of no weight in favor of the side it is invoked to support, while it may be self-destructive, — be successfully impeached by its demonstrated utter improbability or impossibility. *Badger v. Janesville C.*Mills, 95 Wis. 599, 70 N. W. 687; *Flaherty v.*Harrison, 98 Wis. 559, 74 N. W. 360; *Baxter v. C. & N. W. R. Co.*104 Wis. 307, 329, 80 N. W. 644; *Musbach v. Wis. C. Co.*108 Wis. 57, 66, 84 N. W. 36; *Buchmaster v. C. & N. W. R. Co.*108 Wis. 353, 356, 84 N. W. 845; *Albrecht v. C. & N. W. R. Co.*108 Wis. 530, 545, 84 N. W. 882; *Beyersdorf v. Cream City S. & D. Co.*109 Wis. 456, 462, 84 N. W. 860; *Stafford v. Chippewa Valley E. R. Co.*110 Wis. 331, 345, 85 N. W. 1036; *Muenchow v. Theo. Zschetzsche & Son Co.*113 Wis. 8, 88 N. W. 909; *Marshall v. G. B. & W. R. Co.*125 Wis. 96, 100, 103 N. W. 249; *Vetter v. Southern Wis. R. Co.*140 Wis. 296, 300, 122 N. W. 731; *Kroger v. Cumberland F. P. Co.*145 Wis. 433, 440, 130 N. W. 513.

An uncontrovertible found, or conceded fact, or matter existing beyond all reasonable controversy, manifestly, can successfully challenge testimony to the contrary from the mouth of a witness, or number of them. That is elementary, and no-*292more tersely stated and significantly applied than in *Musbach v. Wis. C. Co., supra,*in language by Mr. Justice Dodge, speaking for the court, substantially thus: “The physical fact” established by the evidence beyond controversy “is such .as human testimony, opinion, or theorizing cannot overcome, and of itself is sufficient to defeat the plaintiff’s theory submitted to the jury” and condemns the finding in his favor.

Obviously, the real right of a matter cannot be changed by the mere say-so on oath of any one. It may well be established by evidence, but cannot be thus created. Just so with a verdict. The jury may go upon excursions of discovery for truth within the field of evidence to the uttermost boundaries of reason, not boundaries set by any particular persons, or persons generally, but such as rational men of ■common sense might set without passing beyond the dividing line between the field of probabilities into that of mere guessing or conjecture. So it happens now and then, that cases reach this court, where notwithstanding the decision below, "the judgment cannot stand the test of that rule though it seems to have done so as applied below, or through some oversight the application was not there made.

By reason of the foregoing it has been commonly said: Yer-■dicts must rest on probabilities, not on bare possibilities. There is not capacity in any number of the former to create "the latter. So the person on whom the burden of proof rests to establish the right of a controversy, must produce credible evidence from which men of unbiased minds can reasonably ■decide in his favor. He cannot leave the right of the matter to rest in mere conjecture and expect to succeed. *O’Brien v. C., St. P., M. & O. R. Co.*102 Wis. 628, 632, 78 N. W. 1084; *Hyer v. Janesville,*101 Wis. 371, 77 N. W. 729; *Clark v. Franklin F. Mut. F. Ins. Co.*111 Wis. 65, 68, 86 N. W. 549; *Hart v. Neillsville,*141 Wis. 3, 15, 123 N. W. 125; *Stock v. Kern,*142 Wis. 219, 223, 125 N. W. 447.

The doctrine of those cases condemns the grounding of a verdict upon such shadowy proof as not to establish the vital *293facts to a reasonable certainty. A mere dioico of possible or' conjectural theories 'will not do. As said in *Stock v. Kern,*by Mr. Justice Siebeckeb, — speaking for the court in reaf-firmance of a declaration found in some of tbe cases heretofore cited, — the person on whom the burden of proof rests, does not meet it “by proof which is as consistent with a theory that the injury was- due to a cause not actionable as with the-theory that it was due to an actionable cause, and, in such a state of the proof, the case fails to come within the proper province of the jury.” And, obviously, it might be added, *a*fortiori, it so fails when there is no definite satisfactory proof, from any fair viewpoint, supporting any legitimate theory of injury from actionable fault.

It seems appropriate to thus hold up to view important legal principles so vital to this case. With appreciation of the undisputed matters and the verdict, it is very difficult to-see where there is any legitimate basis in the evidence for the jury’s conclusion, either that a loose drive belt or defective appliance for preventing it from unexpectedly engaging and turning the tight pulley, or both, caused the disk to turn on the occasion in question. True, as said, the decision below should be supported, if it reasonably can be. Stability of determinations of trial courts is of inestimable importance, both to the parties and the public. Technical defects, however numerous, should not constitute a basis for efficient interference. They should not count at all in that regard. Doubts should be resolved in favor of stability. Errors, however clear, inexcusable, or numerous, should be regarded as inconsequential, unless, manifestly, had they not occurred the result to the complaining party might, within reasonable probabilities, have been substantially more favorable to him. Such is the spirit of the Code. Such is the trend of judicial thought in this jurisdiction. Such, it is believed, in general, at least, and never intended otherwise, has characterized the disposition of controversies here.

ÍTow-how does this case square with the stated elementary *294legal principles and public policy as declared by tbe Code and vitalized by tbe decisions of this court ? To answer that witb clearness we must restate, witb more detail, matters referred to in tbe relation of facts preceding tbe opinion, endeavoring to do so witb sucb logical arrangement as will demonstrate tbe proper conclusion without lengthy discussion of evidence and, certainly, any effort to balance probabilities.

In tbe first place, there is tbe verdict of tbe jury, on abundance of evidence and unchallenged on behalf of respondent, that tbe stick, commonly, efficiently used to keep the belt from slipping from tbe loose to tbe tight pulley, was in its proper place when plaintiff was injured. That condemns tbe uncertain, contradictory evidence of respondent as unreliable. Tbe stick bad efficiently done the work it was designed for during some eleven months and tbe time of several operators. Nest there is tbe fact, established by-the physical situation, speaking more unerringly than could witnesses by verbal testimony, that the belt could not efficiently slip to tbe tight pulley witb tbe stick in place to prevent it. Respondent, notwithstanding much wavering, practically admitted that, but by bis contradictory statements be left tbe matter, from bis viewpoint, uncertain whether tbe stick was or was not in place when be was injured. He testified that it lifted up or was thrown out of tbe nails. That was impossible because of proximity of it to tbe lower side of tbe pulleys. If it could have been lifted up so . as to permit of tbe belt moving over materially toward tbe tight pulley, in falling back it would, necessarily, have fallen outside tbe nails on tbe side of sucb pulley. Tbe jury appreciated that, and, so, grounded tbe verdict on tbe positive evidence of witnesses, that, immediately after the injury, tbe stick was observed in place and doing its work. Tbe photograph before us, in connection witb tbe evidence, leaves unmistakable tbe suggestion that tbe stick could not have been lifted out of tbe nails by tbe belt, on account of interference from tbe rims of tbe pulleys. Those *295•clearly established facts, — one found by tbe jury and one ■shown beyond reasonable controversy by evidence, — leave the theory that want of an efficient apparatus for preventing the belt from unexpectedly slipping from the loose to the tight pulley, or an abnormally loose belt, was, or both together were, the cause of the injury, wholly without support.

On the question of whether the belt was too loose, the undisputed evidence that it efficiently did the work of running the barker, demonstrates that there was no looseness permitting it to jump from one pulley to the other, even if the stick interference had not existed. Again, the fact that the heavy thirty-foot six-inch belt hung on the inch wider pulley and that the stick projected at least half ah inch under the edge ■of the latter, demonstrates that there could not have been any such jumping up and down of the belt as claimed, nor any irregular side motion to engage the tight pulley and give motion thereto, much less to suddenly start it, as respondent •claimed. We fail to find support in the evidence that it ever was, or could be, so started, except by the most shadowy of •conjectures. We do not overlook that respondent testified that he saw the machine start once or twice before he vras hurt, and that the belt ran, unexpectedly, over on to the tight pulley, but that was in connection with his testimony that the -stick was thrown from between the nails, which could not have occurred, as we have seen. Moreover, we must remember that according to the verdict, it was not thrown out on the occasion in question. Then, while respondent testified that the stick jumped out, he said also, he did not and could not see it do so, as his back was towards it, as manifestly must have been the case; and finally said, he did not know how the •disk started and never knew of the belt automatically going .from the loose to the tight pulley so as to have that effect.

We should say, in connection with the foregoing, that the •claim in the complaint was that there was no guard whatever to prevent automatic slipping or creeping of the belt from the *296loose to the tight pulley; that improper construction in that regard together with the two pulleys being improperly set too-near to each other, and the belt being too loose, caused the mischief. The undisputed evidence was, however, that the pulleys were set in the customary way and, as before stated, that the stick guard had been long efficiently used, leaving no-element of alleged defect but that of a loose belt, and no evidence which could, at best, give rise to more than a conjecture-that such condition existed so as to cause the machine to start, while the stick remained in its place.

The legal principle before stated, that mere verbal testimony of witnesses, however positive, cannot displace conceded, facts, or demonstrated or found physical situations, so as to warrant a verdict in favor of the former, as also the principle that mere conjectural theories have the same infirmity; applied to the case, seem to efficiently favor the contention that, the court fatally erred in refusing to dispose of it in appellant’s favor for want of evidence to support a verdict otherwise. We will now test that view, briefly, by looking beyond the field of impossibility or conjecture to that of probability,, for some rational theory, based on the evidence, of a non-actionable cause of the injury.

The theory of appellant’s counsel is that respondent started to remove the knife burrs after changing the belt to the loose-pulley before the disk stopped revolving by its own momentum. That seems to have strong support in the evidence, as will be seen.

It is a verity that the disk itself weighed some 500 pounds. With its shaft and drive pulley it must have weighed around 800 pounds. It revolved, when at full speed, some 700 times-per minute. Manifestly such a heavy construction to sustain such motion without disturbance of which there would have-been evidence, had it existed, must have been on a substantially perfect balance. Moreover, the affirmative evidence establishes that as a verity. Then the rim of the disk; evi*297dently the heaviest part of it, because the powerful movement of tbe appliance was depended upon to thrust the knives through the wood in the harking operations with a minimum of efficient resistance, must, when the belt was changed to the loose pulley, have been moving at a speed around twenty-five feet per second, or, to put it more appreciably, have been going one revolution in half a second or thereabouts. That— without any interference hut the air and slight friction in the journals, — upon the belt being removed to the loose pulley, the momentum would sustain motion for a considerable time, is manifest. If there were a slight contact, intermittent or otherwise, between -the belt and the rim of the tight pulley, it would, necessarily, have prolonged the period. If motion was aided thereby only sufficient to prolong somewhat the period for the disk to come to a full stop, then, manifestly, it was not sufficient to overcome the inertia thereafter and start the disk, unexpectedly. All the facts in this regard are self-evident or demonstrated by the evidence, or conceded. The only disputed fact is as to the period the disk would revolve by its own momentum, if, when running wholly idle and at full speed, the drive belt was changed. Respondent said, at first, it would stop at once, then that it would take some time; a couple of seconds, may be a minute. In conclusion he said he did not know as he never timed it. So his evidence, in addition to being wholly unreliable, independently of the certainty afforded by natural laws, is rendered without any weight whatever by the latter. Another witness said the disk wbuld continue to revolve ten or fifteen seconds, that he never timed it, but some length of time. Another witness, who was, perhaps, more familiar with the machine than any other, testified that, in the circumstances supposed, the disk would continue to revolve at least six or seven minutes. Another witness, who was very familiar with the machine, put the period at five minutes from having actually timed it. So the only reliable, the only believable evidence, consistent *298with natural laws, or which arises above the dignity of mere guesswork, fixes the period at around five minutes or more. That must be added to the list of verities to be considered. One more in this connection, — the momentum of the disk was nearly exhausted at the fatal instant. It was running quite slow, else the three- or four-inch projections on the back of the disk, reaching out nearly to the inner side of the cover, would have severed the man’s hand and arm instantly, instead of only breaking three fingers and the arm. Assuming the disk continued to revolve by its own momentum till the injury, the interval must have been five minutes or more. That assumption appears to be unassailable, so it seems, that such interval was about five minutes becomes another verity.

Now as to the movements of respondent from the time he changed the belt till the injury. He said, at first, that he was on the front side of the barker and saw the disk stop, and then started to change the knives. Later, he contradicted that, saying the next thing he did after changing the belt was that he went down below to put a sack into the shavings pipe and, upon his return, he put his hand through the hole on the back side of the disk and received his injury. That such were his movements was made quite clear by other evidence. The distance he traveled would not have required, at most, more than a minute and the time for adjusting the sack another such interval or two, altogether not nearly enough time for the disk to cease revolving. He said that when he came back the disk was stopped. That seems a mere guess, because he made no claim to have then observed it at the front or through the opening at the back. He just picked up his wrench, put his hand through the opening, and instantly was injured.

Consistent with the foregoing, the evidence is undisputed that, immediately after the accident, the disk was still moving slowly, and a little later became stationary, the stick and belt being in proper position, all in harmony with the verdict as *299to tbe stick. Despondent, after making confusing statements, frankly said, as to tbe cause of tbe accident: “I don’t know bow it happened. I was pretty near crazy.” And later, trying to clear up bis previous contradictions, be involved bis evidence still further by this:

> “Before tbe day I was hurt I have seen tbe belt slip from tbe loose pulley onto tbe tight pulley and start tbe machine, one time. I said that tbe belt slipped, on tbe day I was hurt. I didn’t see it. I didn’t say tbe belt was loose at any time. It was loose like that, it was slipping. Before tbe day I got hurt I never saw tbe belt slip over tbe loose pulley to the tight pulley and start tbe machine when no one was touching it. I never saw that. I think it could be so, but I never saw it.”

Does not tbe foregoing demonstrate, beyond any probability to tbe contrary, that respondent came to bis most regrettable misfortune from bis own carelessness, — from putting bis band into tbe zone of danger before tbe disk bad time to stop after tbe belt was shifted and without assuring himself by observation at tbe face of tbe disk, or through tbe band bole, or by testing with a stick, reached through tbe opening, or by looking at tbe shaft which was within bis reach and observation by a mere glance to tbe right, or in some other of several ways which might be mentioned? He knew, as be said, and being an experienced adult, must have appreciated, tbe extreme danger of taking any risk whatever of starting to remove tbe knife burrs before motion in tbe disk bad ceased. To put it very mildly, there is strong probability that such was tbe case as against, at tbe best for respondent, a bare pos-> sibility. But if it were conceded that respondent’s theory,— which be confessed, as we have seen, was merely a matter of opinion, and which is unsupported by any other witness,— has some sort of shadowy probability in its favor, it fails, in our judgment, in any view which a jury, acting considerately, could adopt, to rank with tbe probability to tbe contrary. Hence tbe principle heretofore stated applies, and most em-*300phaticallv, in appellant’s favor, and error was clearly committed in the failure to recognize it in response to the motion for direction of a verdict, and subsequent motions challenging the trial court on the same subject, — that the party holding the burden of proof cannot lift it efficiently by merely producing proof which, in some reasonable view of it, establishes a legitimate theory of actionable wrong, but with no greater certainty, from any fair viewpoint, than an opposing theory, grounded on the evidence, of no such wrong.

This opinion has been extended to considerable length in deference to the weight we must give to the decision of the trial court. In the face of such deference we cannot escape the conclusion that the rule governing the subject is emphatically satisfied in favor of appellant, and that the judgment must he reversed and appropriate directions be given for final disposition of the case.

*By the Court.*— The judgment is reversed, and the cause remanded with directions to render judgment of dismissal with costs in harmony with the motion made in defendant’s behalf on the trial.