tion of its outside wires and converters was within the issues. Each party, without objection from the other, introduced evidence bearing upon that question; and when it was submitted to the jury there was no exception upon the ground of a variance. Effect must therefore be given to the well-settled rule that 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 comes before an appellate court for review.

3. In its charge to the jury the court explained, in substance, that a company supplying electricity for lighting purposes and engaging with individuals to deliver a suitable current at their residences and places of business over its own system of wires and appliances is bound to exercise such control over the subtle and perilous agency with which it is dealing and to take such precautions in the maintenance and inspection of its wires and appliances as are reasonably essential to prevent an excessive and dangerous current from passing from its supply wires to the service wires of its patrons, and then said:

"And you are further instructed that if you believe from a preponderance of the evidence that the deceased came to his death while innocently and without knowledge of any danger using an incandescent light, the current for which was furnished, or to which the electricity was supplied, by the defendant company, the presumption is that the electric company was negligent, and it devolves upon it to show that the surplus and dangerous current that came over the wires did not occur from any negligent act on its part."

Exception to this instruction was taken upon the ground that it erroneously applied the doctrine of res ipsa loquitur. While recognizing that that doctrine is of restricted scope, and when misapplied is calculated to operate prejudicially, we think there was no error in its application in this inVOL. CCXXIV-7

stance. The deceased was without fault. The defendant's primary wire was carrying a current of high and deadly voltage. Its secondary wire conveyed to his residence an excessive and dangerous current which could only have come from its primary wire. Had its wires and converters been in proper condition, the excessive and dangerous current would not have been communicated to its secondary wire and the injury would not have occurred. These wires and converters were exclusively under its control, and it was charged with the continuing duty of taking reasonable precautions, proportioned to the danger to be apprehended, to maintain them in proper condition. In the ordinary or usual course of things, the injury would not have occurred had that duty been performed. Not only did the injury occur, but immediately thereafter both converters were found to be out of order; one being heated and its insulation charred, and the protecting ground wire of the other being broken or severed. Besides, the defendant engaged to supply a current of low voltage, reasonably safe and suitable for lighting, while the current delivered on this occasion was of high voltage, extremely dangerous and unsuitable for lighting purposes. These circumstances pointed so persuasively to negligence on its part that it was not too much to call upon it for an explanation. Of course, if the cause of the injury was one which it could not have foreseen and guarded against, it was not culpable, but in the absence of that or some other explanation there was enough to justify the jury in finding it culpable. This was all that was meant by the instruction, reasonably interpreted. It was not a model, and, if it stood alone, might be subject to criticism. But, if read in the light of what preceded and followed it and of the case before the jury, it was unobjectionable. When so read it rightly declared and applied the doctrine of res ipsa loquitur, which is, when a thing which causes injury, without fault of the injured person, is shown to be under

the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care. Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 554; East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. St. 350; Alexander v. Nanticoke Light Co., 209 Pa. St. 571; Trenton Passenger Railway Co. v. Cooper, 60 N. J. L. 219; Newark Electric Co. v. Ruddy, 62 N. J. L. 505; 2 Cooley on Torts, 3d ed., 1424; 4 Wigmore on Evidence, § 2509.

4. Complaint is made of the court's refusal to give several instructions requested by the defendant. All have been examined, and we find no error in their refusal. Some were in substance incorporated in the charge, some were inapplicable to the case before the jury, and others did not correctly state the law.

Judgment affirmed.

CAMPBELL v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 161. Argued March 6, 1912. Decided March 18, 1912.

As §§ 566, 649 and 700, Rev. Stat., do not make any provisions for such a case, the trial of a case in the District Court of the United States without a jury is in the nature of a submission to an arbitrator, and the court's determination of issues of fact and questions of law supposed to arise on its special findings is not a judicial determination, and, therefore, not subject to reëxamination in an appellate court. In such a case the Circuit Court of Appeals has no power to consider the sufficiency of facts found to support the judgment, but is limited to a consideration of such questions of law as are presented by the

Argument for Plaintiffs in Error.

224 U.S.

record proper independently of the special finding; and, in the absence of any such independent questions, must affirm.

An objection to form of pleading that can be cured by amendment should be seasonably taken on the trial.

Where a statement in the answer that defendant had not and could not obtain sufficient information upon which to base a belief respecting the truth of an allegation in the complaint is not objected to in the trial court as an insufficient denial of the allegation but is treated as sufficient, the objection cannot be made in an appellate court, and the truth of the allegation must be regarded as at issue. 170 Fed. Rep. 318, reversed.

THE facts are stated in the opinion.

Mr. A. B. Browne, with whom Mr. Gerald Hughes, Mr. Alexander Britton, Mr. Evans Browne, Mr. Clayton C. Dorsey and Mr. Barnwell S. Stuart were on the brief, for plaintiffs in error:

There was no jurisdiction in the United States Circuit Court of Appeals to review and reverse the judgment of the District Court.

In actions at law in the courts of the United States, if the questions of fact are, by the consent of the parties, determined by the court without a jury, no ruling made upon or in connection with the trial can be reviewed by the Court of Appeals upon writ of error in the absence of a statute providing otherwise. Rogers v. United States, 141 U. S. 548; United States v. Cleague, 161 Fed. Rep. 85, 86; United States v. Louisville & N. R. Co., 167 Fed. Rep. 306, 308; United States v. St. Louis, I. M. & S. Ry. Co., 169 Fed. Rep. 73, 74, 76.

The question of jurisdiction is one which the court will determine regardless of whether it was raised or suggested by the parties. Cutler v. Rae, 7 How. 729; Mansfield, Coldwater &c. Ry. Co. v. Swan, 111 U. S. 379, 382; Parker v. Ormsby, 141 U. S. 81, 85; Perez v. Fernandez, 202 U. S. 80, 100; Dones v. Urrutia, 202 U. S. 614.

The same rule obtains in the Circuit Courts of Appeals

224 U.S.

Argument for Plaintiffs in Error.

in cases appealed or brought by writ of error to those courts. Where the jurisdiction is found not to be conferred by the Constitution and laws, objection thereto cannot be waived by the parties. Henrie v. Henderson, 145 Fed. Rep. 316; Fred Macey Co. v. Macey, 135 Fed. Rep. 725, 726; Cochran v. Childs, 111 Fed. Rep. 433; Wetherby v. Stinson, 62 Fed. Rep. 173; Tinsley v. Hart, 53 Fed. Rep. 682.

The judgment of the Circuit Court of Appeals is not warranted by the facts and the principles of law applicable thereto.

Not only by virtue of the notice were these sureties released but by the necessary consequences which must be deemed to result from the action which they took.

The sureties did all they could do in the performance of their obligations to the Government and gave the latter the opportunity to prevent any and all loss, and this opportunity was recognized and accepted by the Government, with which latter the rules and principles of fair dealings in its contractual relations with an individual must be held to obtain and be of equal force as in the case of dealing and contractual relations between individuals. Burgess v. Eve, L. R. 13 Eq. Cases, 450, 457; Phillips v. Foxall, L. R. 7 Q. B. 766.

The principle contended for by plaintiff in error as applicable, and upon which, in the case at bar, the sureties should be held to have fully performed their obligation and to be released from further liability, has been recognized and followed in the United States. See Walsh v. Colquitt, 64 Georgia, 740; Emery v. Baltz, 94 N. Y. 408; Dwellinghouse Ins. Co. v. Johnston, 90 Michigan, 170; Rapp v. Phoenix Ins. Co., 113 Illinois, 390, 402; Lewiston v. Gagne, 89 Maine, 395.

Anderson v. Blair can be distinguished, and see United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 Wheat. 184; Dox v. Postmaster General, 1 Pet.