or defect of construction, but also that the employer knew of the fault or defect, or that a person of reasonable care, skill, and prudence would have known of it, and would have anticipated the fatal result which followed. The rule res ipsa loquitur has no application to such a case, and that fact ought to have been stated to the jury." To this last statement of doctrine the learned judge cited the cases referred to in the margin. We subjoin in the note an analysis of the cases cited by Judge Sanborn.3 The holdings in each case, stated within Peirce v. Kile, 80 Fed. Rep. 865; s. c. 26 C. C. A. 201; Blanchette v. Border City Man. Co., 143 Mass. 21, 22; s. c. 8 N. E. Rep. 430; Smith v. First Nat. Bank, 99 Mass. 605; s. c. 97 Am. Dec. 59; Early v. Lake Shore &c. R. Co., 66 Mich. 349; s. c. 33 N. W. Rep. 813; Quincy Min. Co. v. Kitts, 42 Mich. 34; s. c. 3 N. W. Rep. 240; Breen v. St. Louis Cooperage Co., 50 Mo. App. 202; Epperson v. Postal Tel. Cable Co., 155 Mo. 346; s. c. 50 S. W. Rep. 795; Dobbins v. Brown, 119 N. Y. 188; s. c. 23 N. E. Rep. 537; Searles v. Manhattan R. Co., 101 N. Y. 661; s. c. 5 N. E. Rep. 66; Huff v. Austin, 46 Ohio St. 386; s. c. 21 N. E. Rep. 864; 15 Am. St. Rep. 613; East Tennessee &c. R. Co. v., Stewart, 13 Lea (Tenn.) 432; Jones v. Yeager, 2 Dill. (U. S.) 64; s. c. 13 Fed. Cas. No. 7510; Sorenson v. Menasha Paper &c. Co., 56 Wis. 341; S. c. 14 N. W. Rep. 446. Peirce v. Kile, 80 Fed. Rep. 865; s. c. 26 C. C. A. 201 (as between master and servant, proof of the Occurrence of an accident raises no presumption of negligence. If the circumstances speak the negligence of the master, and that can be deduced therefrom as a natural and reasonable inference, the duty of explanation is cast upon him, but proof to warrant such inference must be brought forward by him who charges the negligence, and it cannot be established by conjecture or speculation, or drawn from a presumption. So held where the plaintiff gave no evidence, other than the fact that a rope broke, to suggest insufficiency or defect: Opinion by Jenkins, J.; Woods and Showalter, JJ., concurring); Blanchette v. Border City Man. Co., 143 Mass. 21; s. c. 8 N. E. Rep. 430 (where the only evidence is that deceased, while in defendant's employ making starch, was injured by some of the starch being blown out of the boiler on him, and there is no evidence that the boiler was improperly constructed, or out of repair, and for aught that appears, the accident might have been caused by deceased's negligence, the evidence does not sustain the burden which is on plaintiff to prove due care on the part of the deceased, and negligence on the part of the defendant); Smith v. First Nat. Bank, 99 Mass. 605; s. c. 97 Am. Dec. 59 (loss of bonds deposited with a bank as bailee without hire, in itself, does not show negligence on the part of the bank any more than it tends to prove their theft by either of several persons who properly had access to them. There being several inferences deducible from and equally consistent with all the facts that appear, the plaintiff has not maintained the proposition upon which alone he can recover); Early v. Lake Shore &c. R. Co., 66 Mich. 349; s. c. 33 N. W. Rep. 813 (plaintiff missed his way on a dark night and fell into a turntable on defendant's land, near the street and unfenced. The court said: "The fact that plaintiff was injured at the turntable excavation is not proof that defendant was negligent in maintaining it in the manner it did. Negligence must be founded on competent evidence, and will not be presumed from the bare fact of the occurrence of the accident on the defendant's land." Morse, J., dissented on the ground that the turntable as maintained was a death-trap, and the defendant negligent as matter of law); Quincy Min. Co. v. Kitts, 42 Mich. 34; s. c. 3 N. W. Rep. 240 ("when a servant demands from his master compensation for an injury received in his service, it is necessary that he trace some distinct fault to parentheses, show that the cases which he cites do not bear out his sweeping statement that "the rule is well settled that the breakage the master himself. The mere fact of such injury is no evidence of such fault." Per Cooley, J. One of two timbers laid Over a chasm broke and fell with plaintiff as he was passing over them, but his evidence failed to show why it broke, but left it to conjecture); Breen v. St. Louis Cooperage Co., 50 Mo. App. 202 (when a servant is injured by a breakage in complicated machinery -in this case it was occasioned by the breaking of the shaft of a planing-machine-the rule res ipsa loquitur does not apply. Negligence charged was the failure to repair a defective journal, which was alleged to have caused the shaft to break. It was not sufficient in this case for the plaintiff to establish the fact of the defect, but he must produce evidence tending to show that the breaking of the shaft was the proximate result of such defect, and that the defendant should have foreseen and guarded against it); Epperson v. Postal Tel. Cable Co., 155 Mo. 346; s. c. 50 S. W. Rep. 795, 807 (a lineman is not entitled to recover of his employer for injuries caused by a shock from a wire that he was handling, where the evidence shows that the probabilities are equally strong that the shock was caused by lightning as by the induction of currents in the wire for which the employer would be responsible. Doctrine of res ipsa loquitur not discussed in this case. The court does state that negligence must be clearly shown by competent evidence, either direct or circumstantial, and that it is incumbent on plaintiff to show, by evidence, how and why the accident occurred); Dobbins v. Brown, 119 N. Y. 188; s. c. 23 N. E. Rep. 537 (the mere fact that an accident occurred which caused an injury is not generally of itself sufficient to authorize an inference of negligence; it must be proved by direct evidence or by proof of facts from which the inference of negligence can be legitimately drawn by a jury. So held where a bucket in which work men were being lowered fell down a shaft, and there was no proof of any defect in the plan or structure of the apparatus used, or that it was not well constructed or that similar appliances were not generally used under like circumstances, and the sole survivor was wholly unable to tell how the accident occurred. The evidence failed to negative the inference that the accident might have been due to some cause for which the master was not responsible); Searles v. Manhattan R. Co., 101 N. Y. 661; s. c. 5 N. E. Rep. 66 (semble, that where, in an action to recover damages for injuries alleged to have been caused by defendant's negligence, it appears that the injuries were occasioned by one of two causes, for one of which defendant is responsible, but not for the other, plaintiff must fail if the evidence does not show that the injury was the result of the former cause; if under the testimony it is just as probable that it was caused by the one as the other, he cannot recover. No priv ity of contract between plaintiff and defendant. Plaintiff was a passenger on a surface-car, and was injured by a cinder falling from one of defendant's locomotives, on its elevated railway. It was claimed by plaintiff that cinder fell by reason of ash-pan negligently allowed to be out of repair, but no evidence was offered to prove it, and defendant's proof tended to show that the ash-pan was in good repair, and that the cinder came from the smokestack, and that it could not be prevented. It was not contended that defendant was responsible for sparks coming from the smokestack); Huff v. Austin, 46 Ohio St. 386; s. c. 21 N. E. Rep. 864; 15 Am. St. Rep. 613 (plaintiff, as an employé of F. & Co., was at work on the premises of the defendants, in helping to set up a saw-mill which the defendants had purchased of F. & Co. While so at work a steam-boiler, owned and used by the defendants on the premises to run the saw-mill, exploded and injured plaintiff. It was held that the mere fact of the explosion did not raise a prima facie presumption of negligence on the part of the defendants, since instances are not infrequent where or fall of machinery, platforms, buildings, stopes, caves, and structures of every kind in the use of employés, raises no presumption that the injury resulting to the latter was caused by the negligence of their employers; but the burden of proof is upon the servant to show, by evidence outside the break or fall, not only that it was caused by a fault or defect of construction, but also that the employer knew of the fault or defect, or that a person of reasonable care, skill, and prudence would have known of it, and would have anticipated the fatal result which followed." With great respect for the judge who pronounced this dictum, and with admiration for his conceded judicial talents, we say that no such rule is well settled, and that there is no such rule. We propose to show that there can be no such principle, and that there is no such rule established by authority. The dictum of Sanborn, J., is equivalent to a holding that the negligence of a master in failing to discharge his duty to his servant can never be proved by circumstantial evidence. § 7648. How the Question Stands on Principle. That this cannot be the rule in all cases, as Sanborn, J., asserts it is where the re steam-boilers have blown up after the greatest care, and often from unassignable causes. The court al so distinguishes such a case from that of a passenger on a railroad, holding that the prima facie presumption in the latter case grows out of the high degree of care and diligence required toward passengers); East Tennessee &c. R. Co. v. Stewart, 13 Lea (Tenn.) 432 (as a general rule, proof of the mere fact of injury, in an action by a servant against his master, will not, without more, establish negligence on the part of the defendant so as to shift the burden of proof. The cases in which proof of the injury and that it was caused by the defendant will entitle the plaintiff to recover in the absence of countervailing testimony, are cases in which the evidence that establishes the injury also establishes facts and circumstances from which negligence on the part of the defendant may be fairly implied. So held where plaintiff was injured by the explosion of an oil-cup on the steamchest of a locomotive. There was evidence from which a jury might have found that plaintiff was injured by reason of his own negligence in failing to shut off the steam from the oil-cup); Jones v. Yeager, 2 Dill. (U. S.) 64; s. c. 13 Fed. Cas. No. 7510 (in order to hold the master liable to an employé for an injury occasioned by the explosion of an alleged defective boiler in a mill, the jury must find from the evidence whether the master had or ought to have had knowledge of the fact; and they must further find, from the evidence, whether the defect was the direct and immediate cause of the accident, without which it would not have happened. Substance of charge to jury by Dillon, J. It does not appear that an instruction on the rule of res ipsa loquitur was asked for); Sorenson v. Menasha Paper &c. Co., 56 Wis. 338; S. c. 14 N. W. Rep. 446 (where an employe was found bruised and dead in a hole which had been cut in the floor of defendant's mill, and in which was water about six feet deep, and the hole was in a room where deceased had no known reason for going at any time, and the evidence failed to show how the accident happened, but left it wholly to conjecture, and so far as appeared it was an unaccountable accident and calamity,-a non-suit was proper). lation of master and servant exists, will sufficiently appear on principle if we take a single illustration. In an English case very much cited, a traveller was passing through an arch under a railway on the highway, when a brick fell from the coping of the arch and hurt him. There was no evidence as to how the brick came to fall ex'cept the probability that it had become loose from the shaking of passing trains and had fallen out of its place. It was held that the railway company must pay damages to the traveller. Now suppose that he had been a servant of the railway company and had been set to work by the company on the highway under the arch. The railway company, as a master or employer, was under the duty of exercising reasonable care to the end of seeing that the place where its servant was set at work was reasonably safe. Would not the fall of this detached brick upon the servant demonstrate prima facie, at least, negligence on the part of the railway company, as much as it did when it fell upon the traveller? If not, why not? Have the courts drawn any such distinction? If they have attempted any such distinction, upon what grounds have they put it? It is perfectly obvious to reason that the presumption carried by this maxim originates from the nature of the act or occurrence, and not from the relation of the parties.5 § 7649. Cases Holding that the Rule of Res Ipsa Loquitur Does Apply in Actions by a Servant against his Master for Injury from Negligence of Master.-A far greater number of cases, most of them modern and many of them recent, apply the rule of res ipsa loquitur as a rule of circumstantial evidence under appropriate conditions of fact. 4 Kearney v. London &c. R. Co., L. R. 5 Q. B. 411; s. c. L. R. 6 Q. B. 759; 2 Thomp. Neg. (1st ed.), p. 1220. Judson v. Giant Powder Co., 107 Cal. 549; Sheridan v. Foley, 58 N. J. L. 230; s. c. 33 Atl. Rep. 484; Griffin v. Manice, 166 N. Y. 188; Guldseth v. Carlin, 19 App. Div. (N. Y.) 588; s. c. 46 N. Y. Supp. 357; Huston v. Brush, 66 Vt. 331; Snyder v. Wheeling Electric Co., 43 W. Va. 661; also the cases cited in the next paragraph. Tennessee &c. R. Co. v. Hayes, 97 Ala. 201; Atchison &c. R. Co. v. Mulligan, 67 Fed. Rep. 569; Farmers' Loan Co. v. Toledo &c. R. Co., 67 Fed. Rep. 73; Peirce v. Kile, 80 Fed. Rep. 865; s. c. 53 U. S. App. 291; Posey v. Scoville, 10 Fed. Rep. 140; Rose v. South Carolina Transp. Co., 11 Fed. Rep. 438; S. c. 20 Blatch. (U. S.) 411; Armour v. Golkowska, 95 Ill. App. 492; Pennsylvania Co. v. Sears, 136 Ind. 460; Donnelly v. Hurricane Isle Granite Co., 90 Me. 110; Hoggarty v. Granite Co., 89 Me. 118; Winkleman &c. Drug Co. v. Colloday, 88 Md. 78; Hearn V. Quillen, 94 Md. 39; s. c. 50 Atl. Rep. 402; Coleman v. Mechanics' Iron Foundry, 168 Mass. 254; Graham v. Badger, 164 Mass. 42; Hennesy v. Boston, 161 Mass. 502; Moynihan v. Hills Co., 146 Mass. 586; s. c. 16 N. E. Rep. 574; Barnowsky v. Helson, 89 Mich. 523; s. c. 15 L. R. A. 33; 50 N. W. Rep. 989; Olsen v. Great Northern R. Co., 68 Minn. 155; Turner v. Haar, 114 Mo. 335; § 7650. Evidentiary Facts which have been held to Call for the Application of this Maxim.-The following evidentiary facts have been held sufficient to call for the application of the rule of res ipsa loquitur, exhibiting prima facie evidence of negligence on the part of the master, and imposing upon him the burden of rebutting such conclusion by showing that the accident happened notwithstanding the exercise of ordinary or reasonable care on his part for the protection of his servant:-The fall of an empty barrel from a platform above an employé at work in a packing-house, there being no evidence explaining how it came to fall; the fall of a roof which slipped or tipped to one side and fell while being raised by jack-screws; the fall of the roof of a building which was being erected over the defendant's mill, in which the plaintiff was employed; the breaking of an iron rod in a machine, together with the evidence that it had been used for nearly two years without inspection and was subjected to a strain tending to make it brittle, and was required to carry double the weight assigned to it by the maker of the machine;1o the derail Sackewitz v. American Biscuit Co., 78 Mo. App. 144; s. c. 2 Mo. App. Repr. 192; Shuler v. Omaha &c. R. Co., 87 Mo. App. 618; Bahr V. Lombard, 53 N. J. L. 233; Nolan v. Brooklyn Heights R. Co., 68 App. Div. (N. Y.) 219; s. c. 74 N. Y. Supp. 120; Lentino v. Port Henry Iron Ore Co., 71 App. Div. (N. Y.) 466; s. c. 75 N. Y. Supp. 755; Colelli v. Concentrating Works, 87 Hun (N. Y.) 428; Van Sickel v. Ilsley, 75 Hun (N. Y.) 537; s. c. 58 N. Y. St. Rep. 731; 27 N. Y. Supp. 1113; s. c. aff'd, 149 N. Y. 569; Solarz v. Manhattan R. Co., 8 Misc. (N. Y.) 656; s. c. 59 N. Y. St. Rep. 537; 31 Abb. N. Cas. (N. Y.) 426; 29 N. Y. Supp. 1123; s. c. aff'd, 11 Misc. (N. Y.) 715; 32 N. Y. Supp. 1149; Green v. Banta, 48 N. Y. Super. 156; s. c. aff'd, 97 N. Y. 627; Grant v. Raleigh &c. R. Co., 108 N. C. 462; s. c. 13 S. E. Rep. 209; Folk v. Schaeffer, 186 Pa. St. 253; Louisville &c. R. Co. v. Northington, 91 Tenn. 56; s. c. 17 S. W. Rep. 880; McCray v. Railway Co., 89 Tex. 168; Texas &c. R. Co. v. Crowder, 63 Tex. 502; Gulf &c. R. Co. v. Wood (Tex. Civ. App.), 63 S. W. Rep. 164 (no off. rep.); Missouri &c. R. Co. v. Crowder (Tex. Civ. App.), 55 S. W. Rep. 380 (no off. rep.); Houston v. Brush, 66 Vt. 331; Puget Sound Iron Co. v. Lawrence, 3 Wash. Ter. 226; s. c. 14 Pac. Rep. 869; Mulcairns v. Janesville, 67 Wis. 24. Armour v. Golkowska, 95 III. App. 492 (a prima facie case is made, casting on the employer the burden of rebutting it; because, when a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care). |