d. Negligence; skill; care. a. A finding that a vendor of food was not negligent in selling that which was unfit overcomes whatever presumption as to evidence of negligence arises from the violation of the statute forbidding such sale. Gearing v. Berkson, L.R.A.1916D, 1006, 223 Mass. 257, 111 N. E. 785. XIII. Weight, effect, and sufficiency. e. While the facts justifying an inference of negligence must be established by the evidence, and their existence must not be left to the conjecture of a jury, and while, ordinarily, negligence cannot be presumed merely from the happening of an accident, facts may be established by circumstances, and the same facts which prove the accident may be circumstances from which the facts justifying an inference may be found to exist. Union P. R. Co. v. Erickson, 29 L.R.A. 137, 41 Neb. 1, 59 N. W. 347. f. To sustain an action for the alleged negligence of another, it devolves upon the party asserting negligence to produce sufficient evidence at least to make a prima facie case that his alleged damages occurred through the neglect of some duty which the other party owed to him. It is not sufficient to show circumstances which would indicate that the other party might have been guilty of negligence, especially where the evidence furnished suggests with equal force that the injury might have resulted without fault on the part of the other party. Brown v. Union P. R. Co. 29 L.R.A. (N.S.) 808, 81 Kan. 701, 106 Pac. 1001. b. That other mixtures dangerous to be used on hot stoves had been sold for that purpose without warning is not evidence that it was not negligence to sell for that purpose a particular mixture without warning. Wolcho v. A. J. Rosenbluth & Co. 21 L.R.A. (N.S.) 571, 81 Conn. 358, 71 Atl. 566. c. That one selling a composition containing benzin for a stove enamel has not in two or three years' experience heard of an accident from its use does not disprove his negligence in selling it, with knowledge of its character and the danger of its use, without any warning thereof to his patrons. Wolcho v. A. J. Rosenbluth & Co. 21 L.R.A. (N.S.) 571, 81 Conn. 358, 71 Atl. 566. § 1456. Of druggist. a. A druggist may be found to have been wanting in the exercise of due care in filling a prescription from an opened bottle of tablets bearing the manufacturer's label, where two similar bottles containing tablets stand side by side, but the tablets in the two are strikingly different in appearscription have an extraordinary, if not unprecedented, color for that kind of tablets. Tremblay v. Kimball, 29 L.R.A. (N.S.) 900, 107 Me. 53, 77 Atl. 405. g. In an action to recover for injury caused by the explosion of a powder mill, in which there is no substantial evidence, direct or circumstantial, fairly tending to prove what actually caused the explosion, itance, and those from which he fills the preis not sufficient to show circumstances which would indicate that the defendant might have been guilty of negligence, especially where the evidence furnished suggests with equal force that the injury might have resulted without fault on the defendant's part, and the court rightly sustains a demurrer to the evidence. Byland v. E. I. Du Pont De Nemours Powder Co. L.R.A. 1915F, 1000, 93 Kan. 288, 144 Pac. 251. § 1457. Of physician, surgeon, healer. or Presumption and burden of proof as to, see but must be shown by other evidence. Bon- b. The mere loss of a foot under the care h. In an action for personal injury, the plaintiff, in order to recover damages, must do more than show the possible responsibil-proof of the result of the treatment alone ity of the defendant for the injury. In the absence of direct evidence, he must show the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant, and exclude the idea that it was due to a cause with which the defendant was unconnected. Suburban Electric Co. v. Nugent, 32 L.R.A. 700, 58 N. J. L. 658, 34 Atl. 1069. § 1454. Of bank. Presumption and burden of proof as to, see ante, § 333. a. That a bank trusted its cashier with its own property under similar circum stances is not conclusive upon the question whether it observed the diligence due to a special depositor whose property was stolen by him. Merchants' Nat. Bank v. Carhart, 32 L.R.A. 775, 95 Ga. 394, 22 S. E. 628. § 1455. Of manufacturer or seller. Admissibility of evidence, see ante, § 1274. Negligence of manufacturer of dynamite exploding during transportation, see post, § 1481 a. of a surgeon is not sufficient to show malpractice, in the absence of evidence tending to indicate it. Miller v. Toles, L.R.A.1915C, 595, 183 Mich. 252, 150 N. W. 118. c. The fact that a poor result was obtained by a physician in setting a broken bone, together with the evidence of expert witnesses that the method employed was improper, and not good surgery, is sufficient to sustain a verdict against the physician for malpractice, although other experts testified to the effect that the treatment was proper. Viita v. Fleming, L.R.A.1916D, 644, 132 Minn. 128, 155 N. W. 1077. d. To entitle one to recover damages for injuries negligently inflicted upon him by a magnetic healer from whom he is receiving treatment for disease he is not bound to show that the treatment received was not proper or usual in magnetic healing, but it is sufficient to show that it was XIII. Weight, effect, and sufficiency. d. Negligence; skill; care. not proper to be given in any case to one § 1458. Of master. Evidence as to generally, see ante, § 1276. 1433. Cause of death of employee, see ante, 1437. his fault, and not that of the workman is f. That a workman last seen while standing on some small boards in a building which was in process of construction was found, a few hours later, in the basement underneath, seriously injured, does not show negligence on the part of the em Sployer, where there was no eyewitness to the lia-occurrence, and the memory of the workman was destroyed by the fall. Binewicz v. Haglin, 15 L.R.A. (N.S.) 1096, 103 Minn. 297, Negligence of servant rendering master ble, see post, § 1467. Injury to ship carpenter by falling object, see post, § 1478 b. Contributory negligence of servant, see post, §§ 1484-1487. 115 N. W. 271. g. The conjecture or bare possibility that an employee who was burned in a build Admissibility of evidence as to, under pleading might have attempted to escape by a ing, see post, § 1667. Sufficiency of, to show negligence in failing to promulgate rules, see MASTER AND SERVANT, § 100 p, r, t. Sufficiency of evidence as to negligence in inspection, see MASTER AND SERVANT, 209 u. Sufficiency of evidence to prevent nonsuit, see TRIAL, § 251. See also ante, § 1424 e; MASTER AND SERV ANT, § 57 i. a. A servant must produce some evidence tending to show that his injury was caused by the negligence of his master or of someone having authority to represent him, in order to recover damages against the master, as the mere proof of accident or injury raises no presumption of negligence on the part of the master. Vissman v. Southern R. Co. 2 L.R.A. (N.S.) 469, 28 Ky. L. Rep. 429, 89 S. W. 502. b. An injured employee who sues his employer must present a much higher degree of proof than is necessary in the case of a wayfarer or passenger. It is to be emphasized, however, that the difference is one of degree, and not of kind. This more onerous burden which is placed upon the employee is the natural concomitant of the relation of the parties and of their result ant obligations. Marceau v. Rutland R. Co. 51 L.R.A. (N.S.) 1221, 211 N. Y. 203, 105 N. E. 206. c. An employee suing his employer for alleged negligent injuries must not only show that the employer may have been guilty of negligence but he must produce evidence pointing to the fact that he actually was negligent. Edgar v. Rio Grande W. R. Co. 11 L.R.A. (N.S.) 738, 32 Utah, 330, 90 Pac. 745. d. Upon the question of the right to recover for the death of an employee, the jury cannot speculate as to what he might have been doing or why he was at the place where the injury happened, contrary to the positive testimony in the case. Hobbs v. Great Northern R. Co. L.R.A.1915D, 503, 80 Wash. 678, 142 Pac. 20. e. An admission by an employer that the accidental injury of a workman was fire escape, and have been prevented by thereof, will not be sufficient to sustain a open blinds which closed over a portion verdict against the owner of the building, where there is no proof that anyone was unable to reach the escape, but it is proved that one workman did in fact escape by that route, though unable to say how he did it. Pauley v. Steam Gauge & Lantern Co. 15 L.R.A. 194, 131 N. Y. 90, 29 N. E. 999. i. The unfitness of a part of a staging to be used by employees, and the fact that the employer should have been aware of the defective condition, may be found from the fact that it was worn, rotten, and unfit for use. Donahue v. C. H. Buck & Co. 18 L.R.A. (N.S.) 476, 197 Mass. 550, 83 N. E. 1090. § 1459. - towards minor employee. a. It is not conclusive against the right of a child to recover against his employer for negligence in giving him dangerous work, that he had done it for some time before he was injured. Hinckley v. Horazdowsky, 8 L.R.A. 490, 133 Ill. 359, 24 N. E. 421. b. When the employment of a minor is shown to be illegal because forbidden by a statute, that, in itself, is sufficient evidence of the employer's negligence, and, if the injury complained of occurred in the course of the plaintiff's service under such unlaw ful employment, that is enough to show a causal connection, and the law will refer the injury to the original wrong as its proximate cause. Krutlies v. Bulls Head Coal Co. L.R.A.1915F, 1082, 249 Pa. 162, 94 Atl. 459. § 1460. -as to appliances and machinery generally. Presumption and burden of proof as to, see ante, § 317. XIII. Weight, effect, and sufficiency. Sufficiency of evidence to prevent nonsuit, see TRIAL, § 251 d. See also MASTER AND SERVANT, § 166 z; TRIAL, § 512 b. a. The jury may disregard testimony as to the condition of appliances by the breaking of which a servant is injured, where, if it is reliable, it is utterly incomprehensible how the accident can have happened. Twombly v. Consolidated Electric Light Co. 64 L.R.A. 551, 98 Me. 353, 57 Atl. 85. b. That an appliance was not safe to use in loading iron plates into a vessel may be found from the fact that it dropped them repeatedly. Johnson V. Griffith-Sprague Stevedoring Co. 8 L.R.A. (N.S.) 432, 45 Wash. 278, 88 Pac. 193. c. That one employed on the night shift in a mill had never seen the machinery tested is no evidence that proper inspection and tests of it were not made. Duntley v. Inman, P. & Co. 59 L.R.A. 785, 42 Or. 334, 70 Pac. 529. d. Mere proof that a master was using machinery of a certain kind, and that an accident happened to an employee in its use, does not intend to show negligence, unless it is coupled with some evidence not mere speculation that it was not properly performing its functions. Phoenix Printing Co. v. Durham, 38 L.R.A. (N.S.) 1191, 32 Okla. 575, 122 Pac. 708. e. A servant seeking to recover for an injury must overcome the presumption that the master discharged his duty by providing suitable instrumentalities for the business, by proof, not only that the injuries resulted from a defect in those appliances, but also, that the master had notice of the defects or in the exercise of ordinary care should have known of it. Minty v. Union P. R. Co. 4 L.R.A. 409, 2 Idaho, 471, 21 Pac. 660. § 1461. -as to explosions. a. To maintain an action for the death of an employee through the explosion of dynamite negligently stored in a room provided for his use, plaintiff is not bound to demonstrate the manner in which the explosives were ignited. Brown v. West Riverside Coal Co. 28 L.R.A. (N.S.) 1260, 143 Iowa, 662, 120 N. W. 732. b. A master may be found to be negligent in using a single room of a small shanty for the convenience and shelter of workmen, for the storage of dynamite, and for the installation of a telephone, the electricity from the wires of which may cause an explosion of the dynamite. Brown v. West Riverside Coal Co. 28 L.R.A. (N.S.) 1260, 143 Iowa, 662, 120 N. W. 732. § 1462. -as to guarding machinery. Presumption and burden of proof as to, see ante, § 318. a. Evidence that a guard is actually used on a particular kind of machine is sufficient to show the practicability of a guard on such machines. Streeter V. Western Wheeled Scraper Co. 41 L.R.A. (N.S.) 628, 254 Ill. 244, 98 N. E. 541. d. Negligence; skill; care. b. The gearing of a system of live rollers to carry lumber from a saw may be found to be insufficiently guarded where the only guard employed is an inch board nailed along its upper edge to the edge of another inch board, which forms part of the table carrying the rollers, without supports at the lower edge or at the ends, while the work requires employees to lean against the guard in such a way as to spring the lower edge inward, and the material passing over the rollers had a tendency to strike against and loosen it from the table. West v. Bayfield Mill Co. 45 L.R.A. (N.S.) 134, 144 Wis. 106, 128 N. W. 992. § 1463. -as to elevator. a. To enable a servant to hold his master liable for an injury due to the sudden and erratic movement of an elevator about which he is required to work, he must show that such movement was due to a defect in the mechanism which was known, or should have been known, to the master, and which he neglected to repair; to establish which the mere happening of the accident is not sufficient. Carnegie Steel Co. v. Byers, 8 L.R.A. (N.S.) 677, 149 Fed. 667, 82 C. C. A. 115. b. The failure to comply with an ordinance requiring the openings into elevator shafts to be kept closed when not in use was negligence, and was the proximate cause of the death of a person who fell down the shaft, may be found from evidence showing that such person, who was attempting to ascend on the elevator, was required to stand near the edge to operate it, and that the opening was protected only by a bar across, while the lining of the elevator shaft made a horizontal edge above the opening, so that one standing near the opening might come in contact with such bar or edge and be dragged from the elevator and precipitated down the shaft. Dallemand v. Saalfeldt, 48 L.R.A. 753, 175 Ill. 310, 51 N. E. 645. § 1464. - railroad companies. Conflict of law as to, see CONFLICT OF LAWS, a. In an action for injuries to a railroad employee due to a washout, evidence that at a comparatively recent date, the waters of a creek on one occasion overflowed the track was some evidence tending to show a failure on the part of the company to exercise care to anticipate injury to the tracks, from the water of the creek. Louisville & N. R. Co. v. Peck, 49 L.R.A. (N.S.) 198, 152 Ky. 61, 153 S. W. 39. b. The mere fact that the conductor of a freight train was killed while his hand was on the coupler of a car which was about to be coupled to another, after he had at XIII. Weight, effect, and sufficiency. d. Negligence; skill; care. tempted to use the pin lever, is not suffi-, showing that it was so caused. Henson v. cient to show that the coupler did not work | Lehigh Valley R. Co. 19 L.R.A. (N.S.) 790, automatically, and charge the company with 194 N. Y. 205, 87 N. E. 85. negligence, where it was found to work perfectly immediately after the accident. Midland Valley R. Co. v. Fulgham, L.R.A.1917E, 1, 181 Fed. 91, 104 C. C. A. 151. c. That a coupler on a railroad car was so worn and defective as to permit the train to part indicates negligence on the part of the railroad company, in an action by an employee to hold it liable for injuries caused by such parting, which, unless explained, will justify the jury in holding it responsible for the injury. Callahan v. Chicago, B. & Q. R. Co. 47 L.R.A. (N.S.) 587, 47 Mont. 401, 133 Pac. 687. d. There is sufficient evidence to support a verdict for the plaintiff in an action by a brakeman against a railway company for injuries resulting from falling from a car because of the slipping from its shaft of a pulley on threshing machinery on the car, which he grasped for support, where it is in evidence that it was a part of the duty of one of the railway company's car inspectors to see that such machinery was safely loaded, and that everything connected with it was in good condtion for the train men, and it does not appear that the load on this car had ever been examined or in spected in any manner. Suprenant v. Great Northern R. Co. 49 L.R.A. (N.S.) 1011, 123 Minn. 170, 143 N. W. 320. e. Negligence on the part of a railroad company with respect to the condition of the roof of a car, which blew off, to the injury of an employee, may be found from evidence that the roof "jumped up and down" under the pressure of the wind while the car was in motion, and that it had not been inspected for a period of ten days. Ridge v. Norfolk S. R. Co. L.R.A.1917E, 215, 167 N. C. 510, 83 S. E. 762. i. Evidence that a bolt was missing from a car which had been in a wreck, after it had been removed to the railroad yards, is not sufficient to charge the railroad company with negligence which would render it liable for injuries growing out of the wreck, although the absence of such a bolt might be found to increase the chance of the accident which occurred. Henson v. Lehigh Valley R. Co. 19 L.R.A. (N.S.) 790, 194 N. Y. 205, 87 N. E. 85. j. Negligence on the part of a railroad company may be found from evidence that a side bar on an engine broke when the engine was in motion, and injured an employee in the cab, and that the engine was old and out of repair, that its wheels, bushings, and bearings were worn, and that it pounded while at work. McCullough v. Chicago, R. I. & P. R. Co. 47 L.R.A. (N.S.) 23, 160 Iowa, 524, 142 N. W. 67. k. No recovery can be had on circumstantial evidence for the death of a switchman killed at a switch, on the theory that his foot was caught between the rails because of defective blocking, if the circumstances shown are equally consistent with the the ory that he slipped on icy ground and fell in front of the car, or that he attempted to board the moving train and fell under it. Neal v. Chicago, R. I. & P. R. Co. 2 L.R.A. (N.S.) 905, 129 Iowa, 5, 105 N. W. 197. (Annotated) 1. Showing that loose boxes placed by the foreman of a gang of railroad laborers upon a car to be pushed along the track by a hand car, and remaining in his charge, came in contact with a station platform while the cars were in motion, causing injury to an employee on the hand car, makes out a prima facie case of negligence, for f. The mere fact of the inspection of rail- which the company is responsible, without road cars by proper persons without re- showing that the foreman could have preporting a defect does not show that a hand vented the boxes slipping, or that the sliphold on one of the cars was not in a defec-ping was not caused suddenly by a joint in tive condition, or that the railroad company exercised ordinary care to keep it in a reasonably safe condition. Baltimore & O. R. Co. v. Smith, L.R.A. 1918F, 1205, 169 Ky. 593, 184 S. W. 1108. g. The testimony of employees working about standing cars, with knowledge of the danger when such cars are to be shifted, that no warning was given of intention to shift at a certain time, is not merely negative, but may sustain a verdict based on absence of such warning, against positive evidence that the warning was given. Philadelphia, B. & W. R. Co. v. Gatta, 47 L.R.A. (N.S.) 932, 4 Boyce (Del.) 38, 85 Atl. 721. the rails. Louisville & N. R. Co. v. Northington, 16 L.R.A. 268, 91 Tenn. 56, 17 S. W. 880. m. In an action by a civil engineer for damages for injuries received while riding, under orders, in a train over a new track which he was laying, the accident being alleged to have resulted from undue speed of the train, proof that the track had slid so as to make short, uneven curves; that one side was buried in the mud at intervals, while the other side was raised on planks; that the brakes were applied to check speed, without orders; and that plaintiff, because of the swaying of the cars, went to the end of the train to jump off anticipating an accident,-is sufficient to warrant a finding of undue speed. Meloy v. Chicago & N. W. R. Co. 4 L.R.A. 287, 77 Iowa, 743, 42 N. W. 563. h. A cause of action against a railroad company for injuries to a brakeman by the derailment of a train is not established by evidence that one of the trucks under the car was defective, without showing which § 1465. - street railway companies. one, and that a defective forward truck As to electric controller, see MASTER AND might have caused the accident without SERVANT, § 197 b. XIII. Weight, effect, and sufficiency. d. Negligence; skill; care. a. That a hand hold on a street car was broken during and by reason of the storage of the car in a public street, unlighted and unguarded, may be found by the jury from the facts that it was safe when inspected, and broke when used several hours afterward, when it looked as if something had hit it when moving. Crawford v. United R. & Electric Co. 70 L.R.A. 489, 101 Md. 402, 61 Atl. 287. b. In an action by a motorman of an electric street car for damages for personal injuries caused by his car running upon a curve with such speed as to derail and capsize it, thereby causing the injuries complained of, where the issue is whether a shock of electricity passing through him from his hand on the controller, and through his foot, resting upon the metallic dog of the hand brake produced temporary paralysis, by reason of which he was deprived of control of the car, any presumption of negligence arising from the application of the maxim, res ipsa loquitur, is rebutted by affirmative testimony, inter alia, that the car had been used without similar trouble for twenty days before, and months after, the occurrence of the accident, during which time the car was shown to have been in the same condition as at the time of the accident, that it was of standard type, and made by a reputable manufacturer, and that it had been subjected to all reasonable, practical, and usual inspection. Jenkins v. St. Paul City R. Co. 20 L.R.A. (N.S.) 401, 105 Minn. 504, 117 N. W. 928. § 1466.incompetency or negligence a. Where a servant sues his master for injuries resulting from the negligence of a fellow servant, the plaintiff must prove not only that some negligence of the fellow servant caused the injury, but also that the master had himself been guilty of negligence, either in the selection of the negligent fellow servant in the first in stance, or in retaining him in his service afterwards. Missouri, K. & T. R. Co. v. Day, 34 L.R.A. (N.S.) 111, 104 Tex. 237, 136 S. W. 435. b. The incompetence of a servant which will render a master liable for injury caused to a fellow servant by his negligence may be established by evidence of reputation, although the alleged incompetence did not arise until after his lawful employment. Rosenstiel v. Pittsburg R. Co. 33 L.R.A. (N.S.) 751, 230 Pa. 273, 79 Atl. 556. (Annotated) c. Where in the operation of a complicated machine it is necessary for one servant to give directions by word of mouth from time to time to his helper, the placing a man upon such machine, who is un able by reason of ignorance of the English language, to understand and act upon directions received, is in and of itself suffi d. One sent to help operate a complicated machine may be found incompetent, so as to render the master liable for injury to his superior through his act, where he could not understand the language of his superior, and the operation of the machine required two men and the frequent stopping, cleaning, and starting of it, in the accomplishment of which directions to him from the superior were necessary. Beers v. Isaac Prouty & Co. 20 L.R.A. (N.S.) 39, 200 Mass. 19, 85 N. E. 864. (Annotated) e. An accident to a workman due to the fall of a staging may be found to be due to neglect in superintendence, where it was constructed according to the directions of one who designated the stock and supplies to be used on the job and despatched the men thereto, and who knew, or by the exercise of reasonable diligence ought to have known, that a part of the scaffold which he directed to be used was defective. Donahue v. C. H. Buck & Co. 18 L.R.A. (N.S.) 476, 197 Mass. 550, 83 N. E. 1090. f. The jury may find negligence where one of the men lifting a hand car from the track prematurely drops it without warning, to the injury of a coservant, in violation of the custom not to drop the car until ordered to do so after all are ready to act together. Cahill v. Illinois C. R. Co. 28 L.R.A. (N.S.) 1121, 148 Iowa, 241, 125 N. W. 331. g. The incompetence of a railroad conductor may be found from evidence that although he had worked in several capacities on the railroad for some time, he had only recently been placed in charge of a h. The mere exclamation of a track hand immediately after he had dropped his corner of a hand car which a repair gang was removing from the track, that he did not mean to do so, is not sufficient to overcome the presumption of negligence arising from his act. Cahill v. Illinois C. R. Co. 28 L.R.A. (N.S.) 1121, 148 Iowa, 241, 125 N. W. 331. i. Testimony that, for the purpose of fastening together two sheet-iron plates, a rivet was set on end under the overlap and a nut placed on top of the plates over the riv. |