Opinion by
Plaintiff brought this action to recover damages for personal injuries sustained while in defendant’s employ. At the time in question defendant had in one of its departments certain machines known as “punching presses” used for trimming аnd fitting sheets of steel. The power was transmitted to the machines by means of belting, and each was in charge of an operator called a pressman assisted by a press helper. The upper part оf the press was arranged so as to be lifted by the applied power and so that when released it wоuld fall with great force upon the stationary part beneath. The face of each
On July 19, 1910, while assisting in remоving such clippings at the direction of the pressman plaintiff had three fingers of his left hand cut off by the uppеr part of the machine falling, as it was intended to do Avhen released as above stated. Plaintiff had then bеen at work on this press as a helper for thirty-nine days. • There is nothing to indicate Avhat caused the press to fall at that time. The evidence tended to show that the pressman had the general reputation of bеing careless and a man of intemperate habits, and that some two or three years before he had been discharged by the defendant for intoxication. There was nothing to show that he was intoxicated or had been drinking on the day in question, and nothing aside from the accident to indicate that he was guilty of any negligenсe on that occasion, or to show that plaintiff was injured through any act or fault of his. In fact the causе of the falling of the press did not appear, unless it might be inferred from the act. The court below refused dеfendant’s request for binding instructions and the jury found for the plaintiff; but later, on motion, the court set the verdict aside and entered judgment for the defendant non obstante veredicto.
In a case like this the burden is upon the plaintiff not оnly to prove the accident but also some specific act of
The evidence tending to' show the pressman’s general intemperance and carelessness was not competеnt nor admitted to prove what he did on this occasion, but to show that on account of such habits the defеndant by so employing him became liable for his negligence. But the fatal defect in plaintiff’s case is a lаck of evidence that he was hurt because of the pressman’s negligence.
It was incumbent upon plaintiff to show the unfitness of the pressman, to the extent that it was or should have been known to defendant; and that such unfitness caused the injury complained of; but, as to the latter there was no proof, for so far as appears no one knows what caused the press to fall. This is not a case where the happening of an accident raises a presumption of negligence: McDonnell v. Orinoko Mills,
“Except in the case of a carrier, the rule is uniform that where recovery is sought on the ground of negligence of the defendant, the burden of proof is on the plaintiff, and in an action against an employer some specific аct of negligence must be shown”: Spees v. Boggs,
We agree with the court below, that, “It is not enough" for the plаintiff to show that the pressman was incompetent. He must have gone further and have proved that
The suggestion that plаintiff was not properly instructed as to the dangers of the employment is not sustained by the evidence and was not urged at the argument.
The assignment of error is overruled and the judgment is affirmed.