On Petition for Rehearing.
[108 Pac. 514.]
Mr. Justice Eakindelivered the opinion of the court.
The basis for this motion is that the cause of the accident is not definitely shown by the evidence, and that therefore the liability of defendant is not established, and nonsuit should have been allowed.
5. The complaint alleges “that it was the duty of the defendant to have said gearing stationary during the time that plaintiff and those employed with him were engaged in repairing the chain, and this is conceded by all the witnesses. There was testimony tending to show that the gearing was stopped before the repairs were commenced. ' Plaintiff had a right to act on the assumption that it would not start while he was at work upon it, and the evidence indicates that it was not started by any fellow workman. If the machinery was of such character, or in such a condition, that it was liable to start automatically or by the vibration caused by other machinery in motion, and defendant had knowledge of that fact, then it was its duty to provide a lever lock, notwithstanding it was not usual to use a lock on such a lever; or, if not practicable to use a lock, then to use some other precautions to avoid such a result.
6. As stated in the opinion, there was evidence tending to show that defendant’s foreman knew by his own experience a short time before that the gearing was liable to start automatically, and this was knowledge by the defendant, and the proof upon these questions brings the case within the allegations of the complaint, and was properly submitted to the jury. The evidence upon the question as to whether it was negligence on the part of the defendant to leave the gearing unguarded was also sufficient to take the case to the jury, regardless of what started the machinery. We have not based this *395decision on the principle of res ipsa loquitur, but upon the proof tending to establish defendant’s negligence.
7. It is- not fatal to plaintiff’s case that he does not allege or prove directly what caused the machinery to start. As said in Geldard v. Marshall, 43 Or. 438 (73 Pac. 330), cited in the opinion, if there are circumstances proved from which the jury can properly infer negligence, it is sufficient to be submitted to them. Duntley v. Inman, 42 Or. 334 (70 Pac. 529 : 59 L. R. A. 785), cited by defendant to the effect that the defendant has performed his duty when he has furnished such appliances as are ordinarily used for the purpose intended, is qualified by the condition that he keep them in proper condition. In that case it is said: “In some instances the circumstances attending the - accident may be sufficient, if unexplained, to justify the jury in drawing an inference of negligence. In such cases, however, the physical facts themselves are evidential” and speak of the neglect.
The motion for rehearing is denied.
Affirmed: Rehearing Denied.