so far as the same denied to said plaintiffs the [ the appeal, which was overruled, and this is right to recover the amounts so paid by them the order we are asked to review. The cause for a tax purporting to have been levied for the repair, sprinkling and sweeping of streets. was tried on its merits and finally disposed Both sets of appeals have been submitted to of October 15, 1912. The appeal to this this court on stipulation and on the transcript court was taken on September 6, 1913. The and briefs in the aforesaid Josselyn Case (S. F. appellee has filed a motion to dismiss the No. 6074); and in accordance with the opinion and determination of this court in that case, the cause, and the motion must be sustained. judgments herein of the lower court, in so far as they are in favor of plaintiffs, are affirmed, and the parts of said judgments from which the plaintiffs appealed are reversed, with instructions to the trial court to amend its conclusions of law therein, in accordance with the views expressed by this court in its opinion given and made on October 2, 1914, in the aforesaid case of Josselyn v. City and County of San Francisco, S. F. No. 6074, and to enter judgments herein in favor of plaintiffs for the amounts prayed for in the complaints respectively. (93 Kan. 351) BOWEN. WILSON. (Supreme Court of Kansas. (No. 19037.) 1. APPEAL AND ERROR (§§ 281, 345*)-TIME FOR APPEAL-EXTENSION-MOTION FOR NEW Where the only error complained of is the overruling of a motion to dismiss an appeal from the probate court upon facts which are not disputed, the filing of a motion for a new trial is unnecessary, and cannot serve the purpose of extending the time to appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 1895, 1896, 3024, 3281; Dec. Dig. §§ 281, 345.*] 2. APPEAL AND ERROR (§ 2*)-CONSTITUTIONAL LAW (§ 106*)-RIGHT OF APPEAL-LEGISLATIVE POWER. There is no vested right to an appeal, and the Legislature may take away from the defeated party the privilege before his appeal has been perfected. Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3-7, 1882, 2421; Dea Dig. 82; Constitutional Law, Cent. Dig. $$ 186, 212, 238-245, 252-257, 259; Dec. Dig. § 106.*] 3. APPEAL AND ERROR (§ 338*)-TIME FOR APPEAL-OPERATION-STATUTE. When the judgment appealed from was rendered October 15, 1912, the defeated party had one year in which to appeal to the Supreme Court. Chapter 241 of the Laws of 1913, limiting the time to six months, took effect July 1, 1913. Held, that an appeal taken more than six months from the date of the rendition of the judgment appealed from is too late. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1879-1882, 3057; Dec. Dig. § 338.*] Appeal from District Court, Stafford County. Action by Lewis N. Bowen against Charles F. Wilson. From judgment for plaintiff, defendant appeals. Cause dismissed. Paul R. Nagle, of St. John, for appellant. C. M. Williams, of Hutchinson, for appellee. [1-3] The facts upon which the trial court overruled the motion to dismiss the appeal from the probate court were not disputed, and the ruling was upon a question of law only, so that no motion for a new trial in the district court was necessary to have a review of the order. Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299; Nichols v. Trueman, 80 Kan. 89, 101 Pac. 633. The time in which the appellant could appeal commenc ed when the cause was finally disposed of. McIntosh v. Wheeler, 58 Kan. 324, 49 Pac. 77. He could not extend the time by the filing of an unnecessary motion for a new trial. Ritchie v. K. N. & D. Ry. Co., 55 Kan. 36, 48, 39 Pac. 718. Appellant has not brought up the record of the proceedings on the merits, and the only question presented here is the ruling of the district court on his motion to dismiss, which cannot be considered, for the reason that this appeal was not brought within proper time. Dyal v. City of Topeka, 35 Kan. 62, 10 Pac. 161. It is appellant's contention that his right to appeal within a year accrued to him before chapter 241 of the Laws of 1913, limiting the time to six months, was passed. The act took effect on July 1, 1913, and contains no saving clause limiting its effect. In general terms it provides that the appeal in all cases shall be perfected within six months from the rendition of the judgment or order appealed from. It has been settled that there is no vested right to an appeal, and that the Legislature may take away from the defeated party the privilege before his appeal has been taken. Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539. It follows, therefore, that the cause will be dismissed. All the Justices concur. (93 Kan. 288) BYLAND v. E. I. DU PONT DE NEMOURS (Syllabus by the Court.) 1. MASTER AND SERVANT (§ 285*)-INJURIES TO SERVANT-CAUSE-QUESTIONS FOR JURY. In an action to recover for injuries caused by the explosion of defendant's powder mill, there was no substantial evidence, direct or tually caused the explosion. Held, following circumstantial, fairly tending to prove what acBrown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001, 29 L. R. A. (N. S.) 808, "it is not sufficient to show circumstances which would indicate that the other party might have been guilty of negligence, especially when the evidence furnished suggests, with equal force, that the injury might have resulted without fault on the PORTER, J. The proceeding originated in the probate court and was appealed to the district court. The appellant here, who was the appellee there, filed a motion to dismiss For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes † For opinion on petition for rehearing, see 144 Pac. 282. part of the other party;" and that the court where the cakes were crushed through four sets of rolls, and from the last set of rolls carried by an elevator to a revolving screen; that the smaller particles or screenings constituted what is commonly known as "back dirt," which was carried back to the press mills, again mixed with other unpressed material, and finally returned to the corning mills and reground through the rolls for the purpose of having all grains of powder substantially the same size; that the revolving screen in the north corning mill, where the [Ed. Note. For other cases, see Negligence, explosion occurred, was made up of sections Cent. Dig. 88 200-216; Dec. Dig. § 119.*] of screens; and that some of the buttons or 3. MASTER AND SERVANT (§ 129*)-INJURIES bolts which fastened the screens, and also TO SERVANT — - EXPLOSIONS RECOVERY UNDER FACTORY ACT. metallic butterfly thumb nuts, two or three Plaintiff was injured by the explosion of inches long, attached to the wooden bolts, defendant's powder mill, and alleged, among were loose, and would sometimes drop into other acts of negligence, failure of the defend- the back dirt, and in the regular routine be ant to provide some appliance to prevent metallic thumb nuts from falling through a de- carried to the press mills, pressed into cakes, fective screen, and alleged that, by reason of and carried again to the north corning mill, the absence of such an appliance, metallic where they would be fed into the rolls, therethumb nuts found their way into the inflam- by causing a friction and creating sufficient mable mixture and caused the explosion. At the time the explosion occurred, the plaintiff was not at work near the machine, but stood outside the building, where it was located, and 50 feet therefrom. He was not injured by the thumb nuts falling upon him nor by coming in contact with the machine. Held, that the provisions of the factory act (section 4679, Gen. Stat. 1909), requiring machinery to be properly and safely guarded for the purpose of preventing or avoiding injury to employés in factories, has no application, and that plaintiff could not maintain an action under the statute. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*] Appeal from District Court, Cherokee County. Action by Tobias Byland against the E. I. du Pont de Nemours Powder Company. From judgment for defendant, plaintiff appeals. Affirmed. McNeill, Stephens & McNeill, of Columbus, for appellant. Skidmore & Walker, of Columbus, for appellee. heat and sparks to ignite the dangerous explosives then being crushed. The accident occurred on March 30, 1912, and the petition alleged that on the afternoon of the day before, when the mills had stopped for the day, one Durkee, foreman and inspector, and Robert Carson, the repairman of the defendant, changed a section of screens in the north corning mill, and that some of the butterfly thumb nuts were loose, and through the carelessness and negligence of the carpenter and repairman dropped into the back dirt, and were afterwards repressed with other screenings and returned to the north corning mill, where they caught and hung in the rolls and caused the explosion which completely destroyed the north corning mill, and seriously and permanently injured the plaintiff. The petition further alleged a failure to provide a safe place for plaintiff to work, in that defendant carelessly and negligently managed and operated its plant in several particulars; that it failed to employ suitable, competent, and careful agents and servants to look after the details in the construction, management, and inspection, and in the repair of the tramways, equipments, and grounds in the handling of explosive materials; that it well knew that particles of grit became extremely dangerous when any portion of the same became mixed with the raw materials; that on the morning of [1] In a voluminous petition plaintiff set March 30th, and before the explosion, at out the manner in which the defendant oper- least one of the cakes of powder, which was ated its powder mills, and alleged that the ex- being fed into the rolls of the north corning plosive materials used in making the powder mill, contained butterfly thumb nuts, and all were first mixed in four-wheel mills; that the of the cakes contained many particles of cinmixture was then conveyed in bulk by means ders, sulphur, sometimes called sulphur rock, of push cars and cars drawn by horses on grit-iron, flint, sand, and other grit, and also nails covered tramways running to press mills, and metallic substances, the exact size and where it was pressed into cakes about one descriptions of any of which the plaintiff alinch thick; that these cakes were then con- leged he was unable to state; that these forveyed in a similar manner over other tracks eign substances created heat and sparks in to what is known as the "corning" mills, the rolls and caused the explosion. The peti PORTER, J. The action in the district court was to recover for injuries which the plaintiff sustained in an explosion at the powder mills of the defendant company, where he was employed. The court sustained a demurrer to his evidence and rendered judgment against him, from which he appeals. tion further charged the defendant with negligence in failing to equip the press mills with necessary screens and appliances to prevent foreign substances and grit from going into the machinery with the inflammable and explosive material. There was a failure of proof respecting the allegations of negligence on the part of the foreman and the carpenter. No evidence was offered to show that they or any other person had made any change in the screens on the day before the accident. There was no proof that the explosion was caused by a thumb nut being in between the rolls and producing friction, except proof of circumstances tending to show the possibility of such a thing. Counsel appear unwilling to rest their case alone upon the claim that the evidence showed that the cause of the explosion was that the foreman and the repair man changed the sections of screens on the revolving reel on the day before the accident, and in doing so carelessly failed to fasten securely some of the butterfly thumb nuts, and that some of the thumb nuts were too loose, and by reason thereof one of them dropped off and found its way through the back dirt to the press mills and was fed back to the corring mill, caught in the rolls, and produced a spark, where it ignited the powder. On the contrary it is urged that the explosion may have been caused by any one or more of the acts of negligence alleged in the petition; the failure to provide screens at the press mil, failure to require the mer to change their shoes before coming into the room where the explosion occurred; failure properly to inspect the machinery; failure to enforce proper rules; failure to tack a wire screen over the mouth of the hopper in the corning mill; failure to require the mules and horses to walk upon the narrow path on the trams, and the failure to employ competent agents and servants in the construction, management and operation of the plant But this contention overlooks the rule often declared that: "A fact is not proved by circumstances which are merely consistent with its existence." Duncar Railway Co., 82 Kan. 230, 252, 108 Pac. 101, and case cited in the opinion. by such failure, he cannot recover on that ground. As was said in Duncan v. Railway Co., 82 Kan. 230, 233, 108 Pac. 101, 102: "It (the death of Duncan) may have been caused in the manner claimed by the plaintiff. Possibly one conjecture is as reasonable as another, but the evidence does not reveal the cause of his fall. In the absence of such evidence, there can be no recovery." See, also, another case with the same title (Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356, 51 L. R. A. [N. S.] 565), where it was said that: "While the jury were warranted in drawing fair and reasonable inference from the facts and conditions shown, it was only from those shown, and not from those imagined or inferred, that such inference could rightfully be drawn." And see the following cases cited in the opinion: Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58; Hart v. Railway Co., 80 Kan. 699, 102 Pac. 1101; Brown v. Railway Co., 81 Kan. 701, 106 Pac. 1001, 29 L. R. A. (N. S.) 808-which are against the contention of the plaintiff in the case at bar. Among the cases cited by plaintiff is Luengene v. Powder Co., 86 Kan. 866, 122 Pac. 1032, where a person was injured by a gas explosion, and sued the company engaged in the sale and distribution of natural gas. It was held that he was not bound to show by what means the gas was ignited. That case is easily distinguishable. The injuries were caused by the explosion of gas in the basement of a building. The petition made no attempt to allege what caused the gas to explode, but alleged that the gas company was negligent in failing to keep and maintain its mains and pipe connections in proper condition, and in permitting gas to escape into manholes and trenches and into a telephone conduit to the basement where the explosion occurred. The plaintiff proved these facts; and, while no evidence was offered of the cause of the explosion, a recovery was allowed because of defendant's negligence in carelessly permitting such a highly explosive agency as natural gas to escape and accumulate in a place where it might reasonably be expected an explosion would result from some cause or another. A quite different situation was presented The difficulty with the plaintiff's case is ir Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. that there was no proof showing that any 488, where the gas escaped from an unfinishforeign substance, likely to create heat and ed well into the open air and exploded in the sparks in the rolls, was present in the mix-nighttime. There was no evidence to show ture, or that it caused the explosion; nor what caused the explosion, and it was held was there evidence to show that the explosion was caused by the failure of defendant to enforce proper rules. If it be conceded that the plaintiff showed that for any one or more of the alleged reasons he was not furnished a safe place to work, still the evidence fails to show that the explosion was caused by any failure or neglect of duty on the part of the defendant. The defendant may have been at fault in failing to furnish the plaintiff a reasonably safe place to work; but, unless plaintiff's injuries were caused that plaintiff for that reason was not entitled to recover. Allowing the gas to escape into the open air is manifestly a different character of negligence from allowing it to escape and accumulate in a confined place, where it might reasonably be expected an explosion would result. [2] Plaintiff's argument in the briefs is largely based upon the doctrine of res ipsa loquitur, and Judson v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146, is cited in support of the proposition that the explosion of a powder mill raises a presumption of negligence. That was a case where an explosion of nitroglycerin, in process of manufacture of dynamite in the defendant's powder factory, caused the destruction of plaintiff's property, situated near. It was held that proof of an explosion raises a presumption of negligence sufficient to establish a prima facie case. The principle of res ipsa loquitur controlled, and the decisions cited in the opinion are for the most part in support of that principle. Among those cited are cases where the explosion of the boiler of a steamboat has been held prima facie evidence of negligence in favor of a passenger, and what are some- not obliged either to allege or prove negli- First, the plaintiff pleaded specifically the causes of the explosion, and must prove the act of negligence which he alleged, and that such negligence was the proximate cause of his injuries. He cannot be allowed to make a prima facie case relying upon the doctrine that the accident speaks for itself. Root v. The Packing Co., 88 Kan. 413, 129 Pac. 147. opinion in that case quotes with approval the following language from Orcutt v. Century Bldg. Co., 201 Mo. 424, 443, 99 S. W. 1062, 1066 (8 L. R. A. [N. S.] 929): [3] In the briefs it is contended that the facts shown in the evidence were sufficient to establish a cause of action under the common law, without any statutory aid, but, in addition thereto, it is argued that a cause of action was shown under the factory act. The provision of the factory act, upon which the plaintiff relies, requires that: "All vats, pans, saws, planers, cog gearing, belting, shafting, set-screws and machinery of every description used in a manufacturing establishment shall, where practicable, be properly and safely guarded, for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment." Section 4679, Gen. Stat. 1909. It is said that the evidence shows that the revolving screen was so badly worn inside, and had been in that condition such a length of time, that the bolts would slip and permit the butterfly thumb nuts to be released and drop out while the mill was in motion. We fail to see how any provision of the factory act can affect the cause of action here. The purpose of the act is to require the guardvent injury to employés operating the same, ing of dangerous machinery in order to pre or to those employés whose duties may require them to come near it. Thus guards ing injured by his limbs or body coming in are required to prevent an employé from becontact with moving belts, cog-gearing, saws, pres-planers, and like dangerous machinery. The act likewise requires guard rails or appliances to protect employés from the danger of falling into vats, pans, elevator openings, and things of that nature. There is no provision which requires machinery to be kept in repair, except so far as the neglect to do that would amount to a failure to comply with some of the specific requirements of the act. When the explosion occurred, the plaintiff, according to his own testimony, was not even in the building where the alleged defective screen was, but stood outside 50 feet from the corning mill. He was not employed in operating the machine. He was not injured by coming in contact with the alleged defective screen, but by an explosion of the mill. Moreover, the factory act (section 6 [Gen. St. 1909, § 4681]) required the plaintiff, in order to establish a cause of action under it, to prove that his injuries resulted in consequence of the failure of the defendant to comply with the provisions of the act, or that such failure directly contributed to the injury. The case could be submitted to the jury only for the purpose of permitting them to determine, by speculation and conjecture, the cause of the explosion. "If the plaintiff possesses knowledge of the facts, and is able to plead them specifically and in detail, the reason for the rule disappears, and with it the rule itself." Second, the occurrence of the explosion is not of itself sufficient upon which to base a presumption of negligence of the defendant company in favor of an injured employé. K. P. Railway Co. v. Salmon, Adm'x, 11 Kan. 83; A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204; Railway Co. v. Taylor, 60 Kan. 758, 57 Pac. 973; Lane v. Railway Co., 64 Kan. 755, 68 Pac. 626; Root v. Packing Co., supra. "A finding of negligence cannot rest upon mere conjecture." Railroad Co. v. Tindall, 57 Kan. 719, 723, 48 Pac. 12. The trial court rightly sustained the demurrer, and the judgment must be affirmed. All the Justices concur. PORTER, J. It is true that in reversing the ruling of the trial court refusing to grant a new trial we attached considerable importance to the appearance of the original note produced at the oral argument by counsel for appellant, which not only shows on its face that it is an entirely different note from the one sued on, but also bears some indication of having been altered in a material matter. No suggestion of any kind in explanation of this fact was offered by appellee either in the briefs or at the oral argument, which led us to say in the opinion that the fact was not denied. In the opinion it was said: "We have the original notes before us; and they were offered in evidence in support of the motion for a new trial." In a petition for a rehearing it is asserted that the decision is "based upon alleged facts not germane to the issue before it, not in evidence before the trial court, and upon a misconception of the facts. * The affidavit of the appellant was not introduced in evidence. The notes, which this court found much to comment on, were not introduced in evidence on the motion, and no reference to the notes, or rather to any alteration of the notes appearing on the face of them, was made throughout the hearing." The original note was filed with the clerk of the district court when appellee took judgment, and it is admitted in the application for rehearing that it was, "of course, available as evidence," and was at the time of the hearing of the motion for a new trial in the hands of the clerk. Counsel is somewhat technical in stating that the alteration of the note was not referred to in the testimony of the defendant on the hearing of the ⚫ motion. At different times in his examination by the court the defendant attempted to explain that he relied as a part of his defense upon the fact that judgment was taken upon a different note from that sued on, although the word "alteration" was not used by him. We quote from the abstract: "By the Court: Q. Mr. Bell, you knew about the giving of this note, didn't you? A. Yes, sir. Q. And your liability on it? A. Yes, sir. Q. And knew that suit was to be entered against you and others for it? A. Yes, sir. Q. And entered your appearance? A. Yes, sir. Q. And all the reason you wanted a trial now is because you claim McCue did not carry out an arrangement with you in protecting the suit at the time? A. I think you will find, your honor, in some of the affidavits there, or some of the statements there Q. This is the answer you ** "By the Court: I will take these papers and look them over and decide this case at the next do not think, however, Mr. Bell is in very good day of court-about 8th or 9th of August. I shape to complain." affidavits were not formally offered in evi- sary in the former opinion to set forth all His affidavit, which was among the papers and should have been considered as in evidence, had attached to it a copy of a letter received by him from the other maker of the note, his former partner, stating that he had arranged with Mr. Evans, attorney for the plaintiff, that a suit would be brought upon the note and allowed to drift along. The opinion contains the statement that before suit was brought plaintiff's attorney wrote the defendant to the effect that he held the note for collection, and that it had been obtained through the bank. It is seriously contended that this is a misstatement of the facts, for the reason that the letter did not use the word "obtained," but said: "This loan was made through the cashier of the First National Bank." No attempt was made in the opinion to quote the language of the letter, but merely the substance thereof. Of course, if the loan was made through the bank, the note was obtained through the bank. In the opinion it was said that the note, with the exception of the name of Nolen as payee, was prepared in the handwriting of the appellant Bell. It is asked how the court comes by this knowledge. The answer is that all the written portion of the note, except the name of Nolen as payee, is in the same handwriting as the signature of Bell. It is insisted that the reversal of the judgment violates former precedents where |