Plaintiffs commenced their action in the district court of Shoshone county, alleging the death of Richard Adams on the thirtieth day of November, 1902, while in the employ of defendant corporation, and that his death was the result of the faulty construction and operation of a certain belt used for conveying the ore in the mill or concentrator of defendant, and the careless and negligent *641use of such belt. It is alleged that said Richard Adams was the husband of plaintiff, Emma Adams, and the father of Ellen C. Adams and Virgil F. Adams, minors. The prayer of the complaint is for $40,000 and costs.
A demurrer was filed to the complaint which is not shown by the record to have been disposed of; hence we assume it was withdrawn, as an answer was filed denying all allegations of the complaint as to negligence on the part of defendant in the equipment or maintenance of the belt and other machinery connected with said concentrator, or that the cause of the death of said Richard Adams was in any way traceable to the condition of the belt or defendant’s negligence or carelessness in any manner. On the issues thus joined a jury was impaneled, and when plaintiffs had submitted their evidence a motion for nonsuit was interposed as follows:
“1. Because the plaintiffs have failed to prove a sufficient case for the jury.
“2. Because the plaintiffs have failed to show that defendant was guilty of any negligence causing the death of Richard Adams.
“3. Because the undisputed evidence shows that Richard Adams, deceased, knew the danger or, by the exercise of ordinary care, could have known of the danger and assumed the risk.
“4. Because the undisputed evidence fails to show that the death of Richard Adams was not caused by obvious defects in the machinery used by him, or from hazard incident to the business, or from causes known to exist by him, or which he might have known by the exercise of ordinary care.”
The motion was sustained by the court, a judgment entered for costs in favor of defendant, a motion for a new trial was overruled and the appeal is from the judgment. The errors assigned are as follows: 1. That the decision is against law; 2. Errors of law occurring at the trial and excepted to by the plaintiffs; 3. Accident and surprise which ordinary prudence could not have guarded against.
*642The only question presented by the record for our deter, mination is whether the evidence was sufficient to support a judgment on the findings of the jury in favor of the plaintiffs in case they sp found on the proofs before them. Appellate courts' do not favor nonsuits; the trend of modern decisions is to discourage them. An analysis of the evidence in this case as shown by the record discloses the following facts:
Deceased was employed by defendant as a guard to protect its property at different times. He was not what is termed a practical'millman, was not foreman of the concentrator at the time of the accident, did not have charge of the repair of the machinery, such work being under the control of the foreman. It was usually repaired at noon or between shifts. Mr. Adams’ duty was to place rosin on the belt to keep it from slipping when it was heavily loaded. The belt was used for carrying ore from the ore bins into the concentrator and to prevent the spouts from filling up. Charles LaFevere testified that at the time of the accident the belt was not in good condition. “It had been torn in one place for about seventy feet.” It was shown that bolts would become loose in the belt, and this condition could not be detected when the machinery was in operation. There were no eyewitnesses to the accident that resulted in the death of Mr. Adams. It is shown, however, by the evidence of Mr. LaFevere that he saw the body after death. He says: “When I was notified he was killed he had gone around the pulley and was lying on the other side; his head ivas in the pulley like, and his body was pushed up against the timber.” By another witness it was shown that portions of cloth that resembled his sweater or jumper were taken from the bolts in the belt. There was other evidence introduced as to the character of the belt and the danger from the loose bolts when the machinery was in operation to anyone who attempted to supply the rosin to keep the belt from slipping when heavily loaded. We are of the opinion that the motion for nonsuit *643should have been denied. (Later Bros. v. Hayward, ante, p. 78, 85 Pac. 494, and eases cited.)
(April 13, 1907.) Personal Injury — Negligence op Master — Death op Servant — Presumptions as to Freedom op Servant prom Negligence. 1. In an action against the master for damages caused by the death of the servant as a result of the master’s negligence, the presumptions which arise in favor of the instincts of self-preservation and the known disposition of men to avoid injury and personal harm to themselves, constitute a prima facie inference that the servant was at the time in the exercise of ordinary care, and was himself free from contributory negligence. In case where the injury complained of resulted in the death of the injured person, the law presumes that such person exercised the measure of care which it was his duty to exercise. 2. Where the evidence in a personal injury case is so uncertain as to leave it equally clear and probable that the injury resulted from any one of a number of causes that might be suggested, then and in that case a verdict for plaintiff would be pure speculation and could not be sustained; but where the evidence, although circumstantial, is such that it would appear possible that the injury resulted from any one of several causes, and yet it points to the greater probability that it resulted from the specific cause charged by the plaintiff, a nonsuit should not be granted. In the latter case the jury would be justified in returning a verdict in favor of the plaintiff, although it be possible that the injury may have resulted from some other cause. The law does not anticipate or attempt to exclude mere possibilities. 3. If, upon any fair construction that a reasonable man might put upon the evidence, or any inference that might reasonably be drawn therefrom, the 'conclusion of negligence can be arrrived at or justified, then the defendant is not entitled to a nonsuit, but the question of negligence should go to the jury. 4. Where it does not appear that the inspection and repair of the machinery with which the servant was working was a part of the servant’s employment, and it also appears that the master was in a more favorable position to know its condition and to inspect and repair it, and the disrepair and unsafe condition of the machinery is shown, and was not obvious to the servant, and injury resulted therefrom, and the servant was not familiar with or accustomed to such machinery, and this was known to the master, such facts make a prima facie showing of negligence on the part of the master.*643The judgment is reversed with costs to appellants.
Ailshie, «T., and Sullivan, J., concur.