224 U. S.

Argument for Railway Company.

deceased while he was at work on the car. There is no charge made that the method adopted for the safety of the deceased was not reasonably safe, but the sole trouble was that the switching crew did not heed the signal but negligently allowed the car, which was being propelled toward the one on which deceased was working, to run against it with such force that it ran over and killed him.

The duty and implied contract of the master with its servants is that it will exercise reasonable care to furnish its servants a safe place to work and shall employ competent co-servants, etc.

Where there is a general agent or superintendent having the management or control of any particular department or branch of the business, such agent takes the place of the corporation and any neglect or omission of duty in respect to his employés is the negligence of the master, for which the latter is responsible. Randall v. Balt. & Ohio R. R. Co., 109 U. S. 478; Quebec Steamship Co. v. Merchant, 133 U. S. 375; Central Railroad Co. v. Keegan, 160 U. S. 267.

The cause of the accident was the negligence of the engine and switching crew, and such negligence in this respect was the negligence of fellow-servants for which the defendants in error are not liable. Nor. Pac. Ry. Co. v. Dixon, 194 U. S. 345; Nor. Pac. R. R. v. Peterson, 162 U. S. 355.

The negligence of the switching crew which caused the death of the deceased was not the negligence of one clothed with the control and management of the operating department of defendants in error. The case at bar, therefore, does not form an exception as to the general law of non-liability as above defined. New England R. R. Co. v. Conroy, 175 U. S. 328, 339; Tex. Pac. Ry. Co. v. Bourman, 212 U. S. 536.

The cases cited by plaintiff in error do not apply to this case.

MR. JUSTICE HOLMES delivered the opinion of the court.

The deceased, Fetta, was at work in the repair yard of a railroad; other servants of the road, an engine and switching crew, ran a car needing repair from the general tracks into the special yard, and by their negligence killed him. There was no further relation between the parties than these facts disclose, and the question is certified whether they were fellow-servants within the rule that would exempt the railroad from liability in that case.

The doctrine as to fellow-servants may be, as it has been called, a bad exception to a bad rule, but it is established, and it is not open to courts to do away with it upon their personal notions of what is expedient. So it has been decided that in cases tried in the United States courts we must follow our own understanding of the common law when no settled rule of property intervenes. Kuhn v. Fairmont Coal Co., 215 U. S. 349. Northern Pacific R. R. Co. v. Hambly, 154 U. S. 349, 360.

The precedents in this court carry the doctrine as far as it is necessary to carry it in this case to show that the two persons concerned were engaged in a common employment. No testimony can shake the obvious fact that the character of their respective occupations brought the people engaged in them into necessary and frequent contact, although they may have had no personal relations. Every time that a car was to be repaired it had to be switched into the repair yard. There is no room for the exception to the rule that exists where the negligence consists in the undisclosed failure to furnish a safe place to work in, an exception that perhaps has been pushed to an extreme in the effort to limit the rule. Santa Fe Pacific R. R. Co. v. Holmes, 202 U. S. 438. McCabe & Steen Construction Co. v. Wilson, 209 U. S. 275. The head of the switching crew and the deceased were as

clearly fellow-servants as the section hand and engineer in Texas & Pacific Railway Co. v. Bourman, 212 U. S. 536. Northern Pacific R. R. Co. v. Hambly, 154 U. S. 349. It may be that in the state court the question would be left to the jury, Gathman v. Chicago, 236 Illinois, 9; Indiana, Illinois & Iowa R. R. Co. v. Otstot, 212 Illinois, 429, but whether certain facts do or do not constitute a ground of liability is in its nature a question of law. To leave it uncertain is to leave the law uncertain. If the law is bad the legislature, not juries, must make a change. We answer the certificate, Yes.

SAN JUAN LIGHT & TRANSIT CO. v. REQUENA.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.

No. 96. Argued December 13, 1911.-Decided March 18, 1912.

Denial by the trial court of a motion to strike from the complaint allegations as to exemplary damages does not harm defendant if the court instructs the jury that only compensatory, and not exemplary, damages can be recovered.

Where the parties, with the assent of the court, unite in trying a case on

the theory that a particular matter is within the issues, that theory cannot be rejected when the case is in the appellate court for review. The doctrine of res ipsa loquitur is that when a thing which causes injury, without fault of the person injured, is shown to be under the exclusive control of defendant, and would not cause the damage in ordinary course if the party in control used proper care, it affords reasonable evidence, in absence of an explanation, that the injury arose from defendant's want of care.

The doctrine of res ipsa loquitur was rightly applied against defendant electric light company in the case of a person injured while adjusting an electric light in his residence by an electric shock transmitted

Argument for Plaintiff in Error.

224 U.S.

from the outside wires of the defendant company entirely without fault on his part and in manner which could not have happened had such outside wires been in proper condition.

Although an instruction may be subject to criticism standing alone, it may be unobjectionable if read in the light of what preceded and what followed it.

4 Porto Rico Fed. Rep. 356, affirmed.

THE facts are stated in the opinion.

Mr. Hugo Kohlmann, with whom Mr. F. Kingsbury Curtis, Mr. H. H. Scoville and Mr. H. P. Leake were on the brief, for plaintiff in error:

The doctrine of res ipsa loquitur was not applicable, and the court below erred in applying it to this case.

This doctrine applies only where all the agencies which might have been instrumental in bringing about the injury are under the exclusive control and management of the defendant. There can be no presumption of negligence on the part of the defendant where plaintiff's evidence tends to show contributory negligence on his part as it did in the case at bar; or that the accident would not have happened had the defective installation owned by the defendant or the owner of the house been in good condition, or facts from which it could be inferred that a third agency was the proximate cause of the accident, or that it was a case of divided responsibility where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible. Peters v. Lynchburg Light Co., 108 Virginia, 333; Minneapolis Electric Co. v. Cronon, 166 Fed. Rep. 651; Memphis National Fire Ins. Co. v. Denver Electric Co., 16 Colo. App. 86; Gas Co. v. Speers, 113 Tennessee, 83; Harter v. Colfax Light Co., 124 Iowa, 500.

Moreover, the doctrine of res ipsa loquitur does not apply at all where complainant relies on specific acts of negligence. In such case, plaintiff must prove the negli

224 U.S.

Argument for Plaintiff in Error.

gence alleged. McGrath v. St. Louis Transit Co., 197 Missouri, 97.

The complaint specifically charged negligence in connection with the wire inside the electric light globe which the deceased was alleged to have touched, and plaintiff, in order to recover, was obliged to prove the specific negligence alleged. The fact of the death of the deceased was no evidence at all of its having occurred by reason of negligence on defendant's part as set forth in the complaint. The testimony tended to show that defendant could not have been guilty of the negligence alleged, as it did not have any control over the wires to which the allegations of the complaint referred.

The doctrine of res ipsa loquitur, even if applicable, was incorrectly applied by the court below.

The correct application of the doctrine of res ipsa loquitur requires that the evidence of the happening of the accident, even without other proof of negligence, should be allowed to go to the jury as evidence from which negligence may be inferred by the jury. It creates no presumption of negligence, and does not shift the burden of proof. Lyles v. Carbonating Co., 140 Nor. Car. 25, 26; Ross v. Cotton Mills, 140 Nor. Car. 115, 119, 120; Cherall v. Palmer Brick Co., 117 Georgia, 106, 108; Buckland v. New York, N. H. & H. R. Co., 181 Massachusetts, 3; De Glopper v. Nashville Light Co., 134 S. W. Rep. 609; East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. St. 350, 353; Dean v. Tarrytown &c. R. R. Co., 113 App. Div. 437.

An instruction telling the jury substantially that if they believed certain facts, then the law raises the presumption of negligence, is misleading, unless it also tells the jury that such presumption is rebuttable. Chicago &c. Co. v. Crose, 113 Ill. App. 547; Chicago &c. Co. v. Jamieson, 112 Ill. App. 69.

The rule, res ipsa loquitur, cannot be applied where the evidence shows the conditions under which the accident