The burden was with the plaintiff to prove that the injury suffered by his minor son was occasioned by the negligence of the defendant, and without any contributory negligence of the person injured. The question is whether or not there was any evidence to support those propositions of fact. When the plaintiff's son Joseph went into the defendant's service, he assumed the ordinary hazards incident to it, and the defendant undertook to use reasonable care in providing and maintaining suitable machinery and implements for his use, with a view to his protection against danger of injury from them while duly engaged in the work assigned to him. The boy was engaged in operating what may be termed a carding machine, which was propelled by power communicated to it and applied by means of a belt extending from a line of shafting to a pulley, *Page 559 and the method of stopping this machine was by pushing the belt on to a loose pulley. These two pulleys were close together, and the shifting from one to the other was done with the hand. It was his duty, from time to time, to clean out the apparatus, which he says he was required to do with his hands, and for that purpose to get down under the card. While he was thus engaged on the occasion in question, the machine started in motion, causing a severe injury to his hand and arm. Taking his statement as the fact, he was not chargeable with contributory negligence, but whether or not he was free from such negligence was a question for the jury. His evidence is to the effect that he shoved the belt on to the loose pulley, that the machine stopped and, before he proceeded to the cleaning beneath it, the machine had remained passive for three or four minutes, he having in the meantime been engaged cleaning other portions of it. But that while he was down cleaning the lower portion of the apparatus, the machine suddenly started up and caused the injury. The machine was then set in motion by the belt slipping or passing from the loose to the tight pulley by which it was operated. This being done without any manual aid, tended to indicate that it was the result of some defective condition which caused the transmission of the belt from the one to the other pulley, assuming, as the evidence tended to prove, that it had been properly transferred by him to the loose one. And it may be accounted for by the fact that the alignment of the machine and gearing may have been or become disturbed and imperfect. The inference was permitted that such was the cause for the shifting of the belt and the consequence which followed. The machine was not fastened to the floor otherwise than by its own weight, nor were the other machines in the establishment. The fact that it may by its vibration have been moved sufficiently to place it out of the true line with the driving-belt, and thus causing it to slip on to the tight pulley, was not of itself sufficient to charge the defendant with negligence. But if the defendant had been advised that a like difficulty had existed, and that in consequence the belt was *Page 560 liable to slip from the loose to the other pulley, and put the machine in motion, it would seem that the duty devolved upon the defendant to use due care to prevent it, in view of the danger in which the employe might by such occurrence be placed while engaged in cleaning the machine in the manner the plaintiff's son says he was required to perform that service. There was evidence given on the part of the plaintiff tending to prove that sometime before this boy commenced work there, the belt had in like manner passed from the loose pulley to the tight one, and set this machine in motion; that the superintendent of the defendant was present on one occasion, and saw it so operate, when ineffectual effort was made to cause the belt to remain on the loose pulley and prevent its slipping from it and starting the machine, and when it became necessary to tie up the belt; and that the superintendent then declared his purpose to fix it. The injured boy testified that he had at the time of his injury received no information that the belt had before so slipped from one pulley to the other or that it was liable to do so. Assuming as we may for the purposes of the question here, that the cause of the shifting of the belt, and thus starting up the machine was that before mentioned, a proper adjustment of the pulleys in line with it would have obviated the difficulty; and if as evidence tended to prove the defendant, through its superintendent, had notice that the machine was liable to be set in motion by the casual shifting of the belt for such cause, it was the duty of the defendant to use due care to see that the machine retained its place and that the proper adjustment of the belt in its line with and relation to the pulleys was maintained, or at least to advise the boy of the danger that he might take the precautionary means requisite to his protection. And whether the injury to the plaintiff's son was or not occasioned by the negligence of the defendant in that respect was a question of fact which should have been submitted to the jury. (Donahue v. Drown,154 Mass. 21.)
Evidence on the part of the plaintiff essential to the support of his action was contradicted by that on the part of the *Page 561 defendant. The comparative weight of the evidence is not the subject of consideration here. These views lead to the conclusion that the nonsuit was error, and that the judgment should be reversed and a new trial granted, costs to abide the event.
All concur with PARKER, J., except BRADLEY and VANN, J.J., dissenting, and LANDON, J., not sitting.
Judgment affirmed.