On the Merits.
Fenner, J.The allegations of plaintiff’s petition are, that he was an employee of the defe'ndantcompany; that he “was ordered by the foreman of said oil company to go and assist William Baker, also in the employ of the company, in placing a belt on the meal crusher;, that said work was of a dangerous character and required experience, which was known to. the foreman and of which petitioner was unaware; that petitioner, in compliance with the aformentioned command, did'go, and, in assisting to place said belt on the meal crusher, was struck on the right side of the head a painful blow by a defective, old and worn out clutch-lever, of heavy weight, which broke loose from its fastenings,” and inflicted the injuries complained of; and that said injuries were the result of gross negligence and carelessness on behalf of the foreman and officers of said company.
The defendant answered by general and special denials of negligence and by plea of contributory negligence. We have never encountered a case in which the allegata and the probata were so widely different. There is not a word of evidence to show that the *706work of “placing a belt on the meal crusher” was dangerous; or that the plaintiff ever began or engaged in said work; or that “in assisting to place said belt on the meal crusher ” he was struck by a clutch-lever; or that the clutch-lever was “ defective, old and worn out.”
The plaintiff introduced no evidence whatever relating to the accident except his own oral testimony. The substance of that is, that he received the order from the foreman at a point remote from the meal crusher; that he received no instructions how to go there; that he selected his own route without inquiry, although he professes to have been ignorant of the surroundings; that it passed through and amongst the machinery of the mill; that, in his own words, he “ crawled up ” to a certain platform, where he was quietly standing before he reached Baker or the meal crusher, when he was suddenly struck violently on the head by something, which knocked him off the platform down to the lower floor and inflicted the injuries complained of. He does not pretend to know what struck him, but presumes it was the clutch-lever, because, on recovering from his insensibility, he saw the clntch-lever broken, and did not hear of anything else being broken about the machinery. This is plaintiff’s case, and his whole case, so far as the cause of injury is concerned. Its failure to substantiate the allegations of the petition,and, indeed, the manifest inconsistency between the two, are glaring and startling.
The defendant’s witnesses prove that the route chosen by plaintiff was an improper and dangerous one, involving passage through the machinery and over and under running wheels and belts; and that there were other proper and usual routes which were free from danger.
Plaintiff claims that the foreman was guilty of negligence in not directing him how to go; but the proof shows that plaintiff had been working about the mill for a long time, though he had been working in the interior only for two days prior to the accident. Doubtless the foreman supposed that he knew or would inquire for the proper route; and surely, if he did not know, it was his duty to inquire.
But beyond this, the defendant’s witnesses establish that the clutch-lever was situated entirely below the platform on which plaintiff was standing, and that it was physically impossible, even if it had broken, that it should have flown upward and struck plaintiff’s head.
How the clutch-lever came to break is left a matter of pure con*707jecture. No cause for its breaking is proved by plaintiff. Nothing else about the machinery was injured. Defendant’s theory is that plaintiff stepped on some running pulley or belt and was violently thrown off the platform down and against the lever, and thus broke it. But this is only a theory.
There is a plan introduced by defendant and a great deal of testimony as to routes and the location of belts and pulleys and platforms, and the levee, etc., which is very difficult to understand. Defendant applied to the court for an order directing the jury and counsel to visit and view the premises, which were very near the court house; but plaintiff objected, and the judge declined to give the order. The evidence showed that the clutch-lever had been mended and was restored to the same position it occupied at the time of the accident, and that all the surroundings were the same. A view of the premises might have enlightened the jury, and the plaintiff’s objection that it would place the jury and counsel in peril to enter such a dangerous place does not savor of serious sincerity. He was keeping light from the jury.
Sauer says that Baker was within about twenty-five feet of him when he was struck, and his counsel arraigns the failure of defendant to put him on the stand as affording a presumption that his evidence would have been hostile to defendant. The accident occurred in January and the case was not tried until December, 1890. It is not shown that Baker remained in the employ, or was accessible, or was even living at the time of the trial; nor is there any showing that he was observing plaintiff when the accident occurred. It is plaintiff’s case that needs additional proof, not defendant’s. There is no ground for the application of any presumption in such a case.
On the whole we think the verdict and judgment can not be sustained, for three reasons:
1. The proof is irresponsive to the complaint.
2. It fails to establish any fault or negligence on the part of defendant.
3. The weight of evidence establishes imprudence and fault in plaintiff in selecting, without inquiry, an improper and daiigerous route.
It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be now judgment in favor of defendant^ rejecting plaintiff’s demand, .at his cost in both courts.