III. Presumptions and burden of proof. i. As to skill; negligence; care. b. In the absence of proof of the speed at, I. R. Co. v. Clem, 7 L.R.A. 588, 123 Ind. which a train approached a road crossing, 15, 23 N. E. 965. the presumption is that the engineer ap- d. A statute requiring signals when a proached the crossing with due care, meas-train approaches a road crossing is for the ured by a conscious sense of the danger that benefit of roaming animals as well as permight likely be encountered there. Davis sons, and the railroad company must, to rev. Chicago, R. I. & P. R. Co. 16 L.R.A. lieve itself from the statutory presumption (N.S.) 424, 159 Fed. 10, 88 C. C. A. 488. of negligence which arises from the killing c. That a conductor of a train was not of animals upon its tracks, show that it responsible for the negligent killing of a per- gave the required signals upon approaching son at a highway crossing cannot be assumed the crossing at which the animals were because it was not his duty to keep a look- killed. Campbell v. Mobile & Q. R. Co. 46 out for persons at such places. Clinger v. L.R.A. (N.S.) 881, 154 Ky. 582, 157 S. W. (Annotated) Chesapeake & O. R. Co. 15 L.R.A. (N.S.) 931. 998, 128 Ky. 736, 109 S. W. 315. d. It devolves upon one who claims to have been injured through the failure of trainen to give the required signals on approaching a crossing to overcome by sat isfactory evidence the presumption that they performed their duty in this respect. Davis v. Chicago, R. I. & P. R. Co. 16 L.R.A. (N.S.) 424, 159 Fed. 10, 88 C. C. A. 488. e. A presumption of negligence arises from the blowing of a locomotive whistle loudly and repeatedly under a bridge constantly used by all kinds of vehicles. Mitchell v. Nashville, C. & St. L. R. Co. 40 L.R.A. 426, 100 Tenn. 329, 45 S. W. 337. f. A railroad company which maintains a defective electric bell at a highway crossing, to the injury of one attempting to drive across its track by its unnecessary ringing when no train was approaching, has the burden of showing freedom from fault in the maintenance of the device. Louisville & N. R. Co. v. Comley, L.R.A.1917C, 978, 173 Ky. 469, 191 S. W. 96. g. No presumption as to the guilt or innocence of either party arises from the fact of injury by a collision between a train and a traveler on foot at a railroad crossing. Gahagan v. Boston & M. R. 55 L.R.A. 426, 70 N. H. 441, 50 Atl. 146. § 305. - injury to live stock. e. The statute requiring a railroad company to prove care in case stock is killed or injured by its locomotive does not apply to injury to stock falling through a trestle in fleeing from a locomotive. Nashville, C. & St. L. R. Co. v. Garth, 46 L.R.A. (N.S.) 430, 179 Ala. 162, 59 So. 640. f. Geese are not within the operation of a statute making the killing of "any cattle a railroad track or other live stock" on prima facie evidence of negligence. James v. Atlantic Coast Line R. Co. L.R.A.1915B, 163, 166 N. C. 572, 82 S. E. 1026. § 306. - fires. Sufficiency of evidence as to, see post, § 1475. See also RAILROADS, § 163 h-j. a. Evidence of a fire started by the operation of a railrad is prima facie evidence of negligence on the part of the company. Leroy & W. R. Co. v. Ross & Packer, 2 L.R.A. 217, 40 Kan. 598, 20 Pac. 197. b. The mere emission of sparks from an engine is not per se evidence of negligence. Jacksonville, T. & K. W. R. Co. v. Peninsular Land, Transp. & Mfg. Co. 17 L.R.A. 33, 27 Fla. 1, 157, 2 So. 661. c. The mere communication of fire by a railroad engine is of itself sufficient to raise a prima facie presumption against the company. Louisville & N. R. Co. v. Mar By electricity from street railway, see post, bury Lumber Co. 50 L.R.A. 620, 125 Ala. § 308 h. a. The killing of a mule by a train raises a presumption of negligence on the part of the railroad company. Mack v. South Bound R. Co. 40 L.R.A. 679, 52 S. C. 323, 29 S. E. 905. b. The presumption of negligence on the part of a railroad company when cattle are killed by a train, under N. C. Code, § 2326, extends to the killing, by a train, of oxen which became suddenly frightened at the headlight of a train and jumped upon the track from a highway along which they were being driven hitched to a cart. Randall v. Richmond & D. R. Co. 11 L.R.A. 460, 107 N. C. 748, 12 S. E. 605. (Annotated) c. The presumption of negligence on the part of a railroad company, which prevails in case of an injury to its passenger, does not obtain in case of injuries to the horse of a traveler upon a highway, which are received while the traveler is attempting to cross the railroad track. Terre Haute & 237, 28 So. 438. d. Negligence on the part of a railroad company will be presumed when fire is communicated by its engines to property abutting on its right of way. Dyer v. Maine C. R. Co. 67 L.R.A. 416, 99 Me. 195, 58 Atl. 994. e. The fact that the setting of a fire by a railroad locomotive has been proved by circumstantial evidence does not prevent the presumption of negligence on the part of the defendant, arising under the rule casting the burden of rebutting that presumption on the defendant. Osburn v. Oregon R. & Nav. Co. 19 L.R.A. (N.S.) 742, 15 Idaho, 478, 98 Pac. 627. f. Proof that a fire originated from sparks or cinders from a locomotive throws on the railroad company the burden of establishing the fact that it used the most improved appliances. White v. Chicago, M. & St. P. R. Co. 9 L.R.A. 824, 1 S. D. 326, 47 N. W. 146. g. A railway company is presumptively chargeable with negligence, when it is es III. Presumptions and burden of proof. i. As to skill; negligence; care. tablished that a fire was started by sparks, from its engine, and must prove the exercise of every reasonable precaution in the use of spark extinguishers, the employment of competent employees, and the operation of its trains. Norfolk & W. R. Co. v. Fritts, 68 L.R.A. 864, 103 Va. 687, 49 S. E. 971. h. A presumption of negligence on the part of the railroad company arises from the fact that sparks have issued from a passing locomotive, of such size and in such volume as to kindle a fire and destroy adjacent property. McCullen v. Chicago & N. W. R. Co. 49 L.R.A. 642, 101 Fed. 66, 41 C. C. A. 365. i. The emission from a railroad locomotive of sparks of unusual size, or both of unusual size and in unusual quantity, is sufficient to raise the presumption of negligence and throw upon the company the burden of removing it. Jacksonville, T. & K. W. R. Co. v. Peninsular Land, Transp. & Mfg. Co. 17 L.R.A. 33, 27 Fla. 1, 157, 2 So. 661, 9 So. 689. j. The presumption of negligence on the part of a railroad company is not raised, as matter of law, by mere proof that sparks from its locomotive set fire to adjacent property. Garrett v. Southern R. Co. 49 L.R.A. 645, 101 Fed. 102, 41 C. C. A. 237. k. A prima facie case is established against a railroad company for the destruction of property by fire set by sparks from a locomotive by proof that fire has been communicated from the company's engine to the property, which resulted in its destruction, since such proof raises a presumption of negligence either in construction and equipment, or in management and operation of its engine which it is necessary for the defendant to rebut. Osburn v. Oregon R. & Nav. Co. 19 L.R.A. (N.S.) 742, 15 Idaho, 478, 98 Pac. 627. n. A presumption of negligence arises from a violent impact of a train against another which it is following upon the same track, so as to telescope several cars, and start a conflagration which sets fire to neighboring property, which shifts the burden of showing care to the railroad company. Cincinnati, N. O. & T. P. R. Co. v. South Fork Coal Co. 1 L.R.A. (N.S.) 533, 139 Fed. 528, 71 C. C. A. 316. o. The inference that fire was started in rubbish on a railroad right of way by a passing train is not destroyed by the fact that it was not discovered until two, or two and one-half, hours after the passing of the train, where the community is sparsely settled, and the fire, when first discovered, was smoldering in a log, where it might have slumbered for hours before being communicated to the surrounding territory. Hawley v. Sumpter Valley R. Co. 12 L.R.A. (N.S.) 526, 49 Or. 509, 90 Pac. 1106. § 307. signal torpedoes. a a. The presence of a signal torpedo upon the planking where a highway crosses railroad track is not of itself evidence of negligence on the part of the railroad company in failing properly to care for the torpedo. Obertoni v. Boston & M. R. 67 L.R.A. 422, 186 Mass. 481, 71 N. E. 980. b. No presumption of negligence on the part of a railroad company or its employees arises from the fact of an injury to a boy who picks up a signal torpedo on the railroad track, and from the fact that the railroad employees have been in possession of such torpedoes. Cleveland, T. & Valley R. Co. v. Marsh, 52 L.R.A. 142, 63 Ohio St. 236, 58 N. E. 821. § 308. Street railways. 363. Evidence as to generally, see post, § 1280. Sufficiency of evidence as to, see post, § 1477. a. In order to make a street railway com 1. In an action against a railroad company for the destruction of property by fire set by sparks from the company's locomotive, proof of actual negligence or want of ordinary care must be made by complain-pany liable for the negligent operation of ant, when the presumption of negligence its car the plaintiff must prove facts from which arises upon the establishment of the which it may be legally inferred. Miller v. fact that the fire was communicated from Public Service R. Co. L.R.A.1915C, 604, 86 the engine to the property destroyed is rebutted by proof of proper appliances and careful management and operation. Osburn v. Oregon R. & Nav. Co. 19 L.R.A. (N.S.) 742, 15 Idaho, 478, 98 Pac. 627. N. J. L. 631, 92 Atl. 343. b. In a suit against a street railway company for the death of a pedestrian, struck by a car which left the track because of the splitting of a switch, proof of the accident is sufficient to charge the company with negligence, in the absence of proof to the contrary, and to place upon it the burden of showing that the injuries were not received through any fault on its part. Najarian v. Jersey City, H. & P. Street R. Co. 23 L.R.A. (N.S.) 751, 77 N. J. L. 704, 73 Atl. 527. (Annotated) m. In an action against a railroad company for damages caused by fire shown to have been kindled by sparks from a locomotive, the provision of Minn. Gen. Stat. 1894, § 2700, that the owner of property burned by fire thrown from an engine can recover without showing defects in the engine or negligence on the part of the emc. The maxim res ipsa loquitur will not ployees, throws the burden of proof upon apply to establish on the part of a street the railroad company to rebut the presump-car company liability for injury to a passertion of actionable negligence on its part. by by a missile thrown from under a car, Continental Ins. Co. v. Chicago & N. W. R. where both the act which caused the injury Co. 5 L.R.A. (N.S.) 99, 97 Minn. 467, 107 and the negligence of the street car company in relation thereto would have to be N. W. 548. III. Presumptions and burden of proof. i. As to skill; negligence; care. inferred from the accident. De Glopper v. on his part. Brown v. Edison Elec. IllumiNashville R. & Light Co. 33 L.R.A.(N.S.)nating Co. 46 L.R.A. 745, 90 Md. 400, 45 913, 123 Tenn. 633, 134 S. W. 609. Atl. 182. d. A street railway company which em- c. The doctrine of res ipsa loquitur cannot ploys a minor as motorman on its car has, be invoked to hold liable an electric comin case of injury to a child through colli-pany furnishing a current of electricity to a sion with the car, a greater burden of show- private building, connected with inside wiring that the accident was not due to his ing owned by, and under the exclusive conincompetence than though he had been ma- trol of, the owner of the building, for an ture. Cloud v. Alexandria Electric R. Co. injury resulting directly from the imperfect 18 L.R.A. (N.S.) 371, 121 La. 1061, 46 So. insulation and condition of such inside 1017. wiring, merely because the electric company is producing and furnishing the dangerous and subtle element of electricity under a contract with such owner. Minnesota General Elec. Co. v. Cronon, 20 L.R.A. (N.S.) 816, 166 Fed. 651, 92 C. C. A. 345. e. From the fact that a street car was not stopped upon the happening of an accident within the space within which it was possible to stop it, there arises an inference that the motorman was not as prompt or as energetic as it was possible for a motorman to be, and this inference overcomes the statement of witnesses that the motorman did all that was possible to stop the car. Crisman v. Shreveport Belt R. Co. 62 L.R.A. 747, 110 La. 640, 34 So. 718. f. Cars left by a street car company standing during the night in a public street, merely as a place of storage, will, in the absence of evidence to the contrary, be presumed to have been unlighted and unguarded. Crawford v. United R. & Electric Co. 70 L.R.A. 489, 101 Md. 402, 61 Atl. 287. g. An electric railway company cannot be held liable for injury to a person on the street by the breaking of its trolley wire, on the ground that there is no other apparent cause for the break than the negligence of the company. Lanning v. Pittsburg R. Co. 32 L.R.A. (N.S.) 1043, 229 Pa. 575, 79 (Annotated) h. The escape of electricity from a street railway, to the injury of a horse being driven on a public street, is presumptive proof of negligence in the operation of the railway. Trenton Pass. R. Co. v. Cooper, 38 L.R.A. 637, 60 N. J. L. 219, 37 Atl. 730. Atl. 136. d. Electric companies. § 309. Generally. Electric cars, see ante, §§ 286-290. Electric railroads, see ante, § 308. d. The negligence of an electric light company cannot be established by the aid of the doctrine res ipsa loquitur in case of an injury to a customer by a shock received while handling a light bulb, where the wir ing on his own premises was done by the customer, and all fixtures there were owned and controlled by him; while the accident is shown not to have been due to anything under the control of the company. Peters v. Lynchburg Light & T. Co. 22 L.R.A. (N.S.) 1188, 108 Va. 333, 61 S. E. 745. e. Injury to a property owner whose building an electric lighting company has contracted to light by means of an equipment furnished by itself, by the escape of a current from the wires when he attempts to turn on light at a particular lamp, raises a presumption of negligence on the part of the company, and places the burden of rebutting the presumption upon it. Alexander v. Nanticoke Light Co. 67 L.R.A. 475, 209 Pa. 571, 58 Atl. 1068. § 310. — hanging or fallen wire. a. The presumption of negligence from the breaking of a live electric wire and its fall to the ground is not final or conclusive, but may be repelled by evidence. Snyder v. Wheeling Electrical Co. 39 L.R.A. 499, 43 W. Va. 661, 28 S. E. 733. b. Negligence is prima facie shown on the part of an electric light company by proof that a guy wire hanging to the ground Negligence as to electrical appliances gen- from a tree was charged with a deadly cur erally, see post, § 348. See also ELECTRICITY, § 14 a, c. a. Failure by an electric light company to comply with a municipal ordinance requiring wires to be insulated is prima facie evidence of negligence. Mitchell v. Raleigh Electric Co. 55 L.R.A. 398, 129 N. C. 166, 39 S. E. 801. b. A prima facie presumption of negligence on the part of an electric light company arises by an injury to a boy while cleaning a small roof over a window just below a second-story window, by coming in contact with the point of a dangerously charged wire left sticking up and entirely uncovered where it was jointed just beyond an insulator, and only a few inches from the roof on which he was working, where there is nothing to show any want of care rent by connection with feed wires of a railway company. Haynes v. Raleigh Gas Co. 26 L.R.A. 810, 114 N. C. 203, 19 S. E. 344. c. Sufficient prima facie evidence of negligence on the part of an electrie company is shown by the unexplained fact that a person on the surface of the highway was injured by contact with a hanging or fallen charged wire. Walter v. Baltimore Electric Co. 22 L.R.A. (N.S.) 1178, 109 Md. 513, 71 Atl. 953. (Annotated) d. That an electric wire had become disconnected or detached from its fastening, and hung down in a public alley so as to endanger public travel, is of itself prima facie evidence of negligence upon the part of the company maintaining it. Denver Consol. Electric Co. v. Simpson, 31 L.R.A. 566, 21 Colo. 371, 41 Pac. 499. (Annotated) III. Presumptions and burden of proof. i. As to skill; negligence; care. e. A presumption of negligence on the part of an electric company arises when injury results to a traveler in a public street from one of its live wires, which has broken and is hanging so near the ground as to be within reach therefrom. Boyd v. Portland General Electric Co. 57 L.R.A. 619, 40 Or. 126, 66 Pac. 576. f. Proof that an electric light wire controlled by a private corporation, and normally suspended upon poles along a public street, was trailing broken on the sidewalk, affords a presumption of negligence, in a suit against such corporation by a person injured through electric shock by contact with such wire. Newark Electric Light & P. Co. v. Ruddy, 57 L.R.A. 624, 62 N. J. L. 505, 41 Atl. 712, 63 N. J. L. 357, 46 Atl. 1100. Statute placing on employer rejecting work- a. A servant seeking to recover for an injury has the burden of establishing negligence on the part of the master and due care on his own part. Minty v. Union P. R. Co. 4 L.R.A. 409, 2 Idaho, 471, 21 Pac. 660. b. Since the doctrine of res ipsa loquitur is inapplicable in actions between master and servant, the mere happening of an accident which causes injury to a servant raises no presumption of wrongful act of the master. Midland Valley R. Co. v. Fulgham, L.R.A.1917E, 1, 181 Fed. 91, 104 C. C. A. 151. (Annotated) g. An injury from contact with a broken telephone wire hanging over and in contact with the feed wire of an electric railway affords a prima facie presumption of negligence on the part of the owners of the wires. Western U. Teleg. Co. v. State Use of Nelson, 31 L.R.A. 572, 82 Md. 293, 33 Atl. 763. h. An allegation in an action to recover for injuries to a passer-by from a broken live electric wire, that it was weak and defective, and insufficiently stretched and fastened, does not require proof of these facts, since the happening of the accident is presumptive evidence of negligence in that regard. Boyd v. Portland General Electric Co. 57 L.R.A. 619, 40 Or. 126, 66 Pac. 576. d. In actions by employees against their i. An electric company maintaining over- employers for injuries sustained through head wires along a public alley is prima negligence, the mere fact of the injury facie liable for injuries caused to persons rightfully in the alley by live grounded wires. Ġannon v. Laclede Gaslight Co. 43 L.R.A. 505, 145 Mo. 502, 46 S. W. 968, 47 S. W. 907. c. The doctrine res ipsa loquitur is not favored by the courts and its application is confined to a limited field, its most common application being in favor of a passenger against a common carrier, and it is not deemed applicable as a rule in master and servant cases. Hunt v. Chicago, B. & Q. R. Co. L.R.A.1918B, 369, 181 Iowa, 845, 165 N. W. 105. creates no presumption of negligence on the part of the employer, and the doctrine of res ipsa loquitur does not apply. Lucid v. E. I. DuPont de Nemours Powder Co. L.R.A. 1917E, 182, 199 Fed. 377, 118 C. C. A. 61. j. An allegation in a suit for damages e. The mere fact of an injury to an emfor injuries caused by a live grounded elec-ployee ordinarily raises no presumption of tric wire in a public alley, that its owner negligence on the part of the employer but permitted it to become broken and to re- there is no hard and fast rule that the docmain down a long time when it knew or trine of res ipsa loquitur can in no case be ought to have known its condition, does not applicable in a suit by an employee against shift the burden of proof as to care of the an employer for negligent injuries. Byers wire from defendant to plaintiff. Gannon v. Carnegie Steel Co. 16 L.R.A. (N.S.) 214, v. Laclede Gaslight Company, 43 L.R.A. 159 Fed. 347, 86 C. C. A. 347. 505, 145 Mo. 502, 46 S. W. 968, 47 S. W. 907. e. Master and servant. § 311. Generally. Cause of death, see ante, § 273 m. Burden of proving waiver of agreement between master and servant, see post, § 408 d. Evidence as to negligence generally, see post, § 1276. Sufficiency of evidence as to, see post, §§ Constitutionality of statute as to, see Con- f. The relation of employer and employee is not per se inimical to the application of the maxim "res ipsa loquitur" in case of injuries received by the employee in the course of his employment. Marceau v. Rutland R. Co. 51 L.R.A. (N.S.) 1221, 211 N. Y. 203, 105 N. E. 206. g. The maxim res ipsa loquitur applies to the same extent in cases of injuries to servants as in other cases of personal injuries. Velotta v. Yampa Valley Coal Co. L.R.A. 1918B, 917, - Colo. —, 167 Pac, 971. h. Where the doctrine of fellow service and assumption of risk has been abrogated by statute, the maxim res ipsa loquitur applies between master and servant. Decatur v. Eady, L.R.A.1917E, 242, 186 Ind. 205, 115 N. E. 577. i. The doctrine res ipsa loquitur applies in case of injury to a servant through the III. Presumptions and burden of proof. i. As to skill; negligence; care. alleged negligence of the master, where the omission, the master has violated some duty facts eliminate blame on the part of the which he owed to the servant and which servant or his fellow servants, but show caused the injury complained_of. Omaha prima facie negligence on the part of some- Packing Co. v. Sanduski, 19 L.R.A. (N.S.) one. La Bee v. Sultan Logging Co. 20 L.R.A. 355, 155 Fed. 897, 84 C. C. A. 89. (N.S.) 405, 47 Wash. 57, 91 Pac. 560, aff'd on rehearing in 51 Wash. 81, 97 Pac. 1104. j. The rule res ipsa loquitur applies in a proper case between master and servant as well as between carrier and passenger, but its application as between the former is limited to that class of cases which is not susceptible of direct and positive proof by living witnesses, and the rule is resorted to only as a last resort in order to prevent a miscarriage of justice. Klebe v. Parker Distilling Co. 13 L.R.A. (N.S.) 140, 207 Mo. 480, 105 S. W. 1057. p. Negligence ordinarily cannot be inferred from the happening of an accident to an employee or from the discovery in a machine or other instrumentality of a latent defect, for which under the existing circumstances no responsibility can be imputed to the employer. There is no liability for injury to a servant unless there has been some negligence for which the master is liable. Chiuccariello v. Campbell, 44 L.R.A. (N.S.) 1050, 210 Mass. 532, 96 N. E. 1101. q. The doctrine res ipsa loquitur is not applicable to establish negligence on the part k. In case of an accident to an em- of one engaged in excavating a trench mereployee, the fact of accident carries with it ly because a cable breaks, when put to its no presumption of negligence on the part ordinary use of lifting a bucket of dirt from of the employer, and it is an affirmative the trench, and permits a loaded bucket to fact for the injured employee to establish, fall upon one of the men employed in the that the accident was the result of the negligence of the employer. Neeley v. Southwestern Cotton Seed Oil Co. 64 L.R.A. 145, 13 Okla. 356, 75 Pac. 537. trench, to his injury. Removich v. Bambrick Bros. Constr. Co. L.R.A.1917E, 233, 264 Mo. 43, 173 S. W. 686. (Annotated) r. The maxim "res ipsa loquitur" will not apply to charge the master with negligence in case of the explosion of a steam rendering vat to the injury of a servant who had exclusive control and supervision of the ap pliance. Lynch v. Ninemire Packing Co. L.R.A.1917E, 178, 63 Wash. 423, 115 Pac. (Annotated) 1. Under certain circumstances, the maxim, res ipsa loquitur, may apply in an action brought by a servant against his master for injury caused by an agency of the master, since the application of the maxim does not ordinarily depend upon the relation between the parties, except indirect-838. ly, so far as that relation defines the measure of duty imposed on the defendant. Jenk ins v. St. Paul City R. Co. 20 L.R.A. (N.S.) 401, 105 Minn. 504, 117 N. W. 928. m. In an action by an employee against his employer, the fact of accident carries with it no presumption of negligence on the part of the employer, but such negligence is an affirmative fact for the injured employee to establish by the evidence. Phoenix Printing Co. v. Durham, 38 L.R.A. (N.S.) 1191, 32 Okla. 575, 122 Pac. 708. n. No presumption of negligence on the part of the master arises from the mere existence of a defect or the happening of the accident through which the servant was injured. The maxim "res ipsa loquitur" is applicable only where the matter of the occurrence or the attendant circumstances are such that the jury can reasonably infer that the occurrence would not have taken place unless the master was lacking in diligence; and, where there is the slightest evidence to explain the happening of the occurrence on any other theory than that of the negligence claimed, the jury should disregard the inference arising from the fact of the injury. Removich v. Bambrick Bros. Constr. Co. L.R.A.1917E, 233, 264 Mo. 43, 173 S. W. 686. s. The maxim "res ipsa loquitur" applies where an employer stores in a building in which he is manufacturing explosives approximately 30,000 pounds of high explosives, which explode and injure an ployee. Lucid v. Du Pont de Nemours Powder Co. L.R.A.1917E, 182, 199 Fed. 377, 118 C. C. A. 61. (Annotated) em of a high-voltage electric wire defectively insulated at the place where he was required to work makes a prima facie case of doctrine of fellow service and assumption liability on the part of the master, if the of risk has been abrogated by statute, and the defective insulation is easily visible on 242, 186 Ind. 205, 115 N. E. 577. inspection. Decatur v. Eady, L.R.A.1917E, t. Proof of the death of a servant because (Annotated) the taking of an X-ray picture of the injury u. In an action for injuries resulting from of an employee of a telephone company, by strumentality is under the exclusive control a servant of such company, where the inof the company, and where there is evidence that injury to the subject is not a necessary result of the taking of such a picture if proper instruments and proper care are used, and evidence that such injury did result in this case, the doctrine res ipsa loquitur applies, and the company not having shown o. The mere fact that an accident to a servant happens does not of itself create a conclusively that it was not negligent, a presumption of negligence on the part of the employer but where negligence is charged as a basis of recovery, the burden is upon the servant to show that, by some act or judgment for the employee upon a verdict in his favor will not be disturbed. Jones v. Tri-State Teleph. & Teleg. Co. 40 L.R.A. (N.S.) 485, 118 Minn. 217, 136 N. W. 741. |