Albert

This is the second appeal in the above-entitled action. The first appeal was heard and determined in the supreme court ( 174 Cal. 451 , [ 163 Pac. 666 ]). The facts of the case are set forth in that decision. The first count in the complaint was dismissed, a nonsuit was granted as to the third count, and the judgment, from which this appeal was taken, rests on the second count referred to in that opinion. The theory on which the second count was framed was that the deceased, Frank H. Albert, had commenced his work when the machinery was not in operation, and that when he had placed himself in a position of danger that the machinery was started in motion and that a set-screw (from which decedent had removed the guard) caught in his clothes and revolved his body against the wooden beams and thus caused his death. No one witnessed the accident. To prove her theory of the case the plaintiff caused to be constructed in the courtroom a model built to scale showing the exact dimensions of the space in which the body of the deceased was afterwards found. She also introduced expert testimony showing what would be the effect produced if, when the machinery was idle, the human form of a man…