CHICAGO & N. W. RY. CO. v. O'BRIEN, 132 F. 593

HOOK, Circuit Judge, after stating the case as above, delivered ticte opinion of the court. The deceased did not, while upon the train in the performance of Ife duties as an express messenger, sustain to the railway company ferelation of a passenger, and he was not, therefore, entitled to that highest possible degree of care to which a common carrier is held for fee safety of those who have paid for their transportation as passengers. Neither was the express messenger a mere licensee.

He was not upon the train at the mere sufferance of the railway company, but he was engaged thereon in the performance of duties which had connection wife its business of transportation, and which would naturally have been' performed by its own employés had it not been otherwise arranged by, contract with the express company. His relation to the railway com-; pany was analogous to that of one of its own employés. Railway Company v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560.

The measure of care which the railway company owed him in respect of its; track, engine, cars, and the operation of its train was the same which, it owed to those in its immediate service.

The derailment of the train, the injury to the express messenger, and-his death occurred in the state of Iowa.- The contracts between the express company and the deceased and between the express company and the railway company, in so far as they provided for the immunity-of the latter from all liability to him for the result of its negligence, are contrary to the public policy of that state as expressed in the act of its Legislature.

But this statute, while avoiding those provisions of the contracts, did not alter the character of the relation between the railway company and the deceased, nor the rules of evidence appropriate' thereto. ■ The testimony of the witnesses Bowles and Clark should have been,’as it doubtless was, laid aside by the jury as not being entitled to seri-i ous consideration. Not much more, if any, value can be attached to the condition of the wreck as evidence of the speed of the train at the time of its derailment.

We are aware of no standard of comparison which would have enabled the jury to say that the quantum of demolition resulting from the derailment of the train on a downgrade, on an embankment, and at a sharp curve, was such that it was presumably going at a speed in excess of its usual and

schedule rate. It is doubtful that there is any common knowledge upon such subject which would justify an inference having the probative force of evidence that the condition described in the record would not have resulted from a speed of 45 miles per hour or less. But, however this may be, it is obvious that it was of great importance to the railway company that the,jury be instructed that the fact of derailment of the train did not in itself-raise a presumption of negligence for which it was chargeable. Such an instruction was requested, and it was refused by the Circuit Court.

It is familiar doctrine that in cases between employé and employer the law does not presume carelessness or negligence on the part of the latter. And the presumption in the case before us is that due care was exercised by the company in respect of the condition of the engine, cars, and railroad track, and also that those in charge of the operation ’ of the train performed their duty. No logical distinction can be made in the application of this presumption of performance of duty between the mechanical condition of the engine and cars on the one hand and the operation of the train upon the other.

The burden of proof is upon him who asserts that the employer was negligent. This burden caiilj not be discharged by mere proof of the occurrence of the accident. Td hold otherwise would be to ignore the well-established and long-set-’ tied difference between the rules which govern in passenger cases and those which apply when the relation is that of employer and employéí The doctrine res ipsa loquitur is not applicable in cases of the latter character. , I , - .....: In Patton v. Texas & Pacific Railway Company, 179 U. S. 658, 21 Sup. Ct. 275, 45 L.

Ed. 361, the court said: “That while, in the case of a passenger, the fact of an accident carries with it a presumption of negligence on the part of the carrier — a presumption which, in the absence of some explanation or proof to the contrary, is sufficient to sustain a verdict against him, for there is prima facie a breach of his contract to carry safely — a different rule obtains as to an employé. The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employé to establish that the employer has been guilty of negligence.

That in the latter case it is not sufficient for the employé to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was.

And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.” In Texas & Pacific Railway Company v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L.

Ed. 1136, a foreman in charge of a switch engine was injured by the explosion of another engine with which he had nothing to do. The Supreme Court approved of the charge of the trial court which embodied the rule “that the mere fact that an injury is received by a servant in consequence of an explosion will not entitle him to a recovery, but he must, besides the fact of the explosion, show that it resulted from the failure of the master to exercise ordinary care either in selecting such engine or in keeping it in reasonably safe repair.” In O’Connor v. Ry. Co., 83 Iowa, 105, 48 N.

W. 1002, the court said that “the mere happening of the derailment or the accident would not show negligence”; citing Baldwin v. Railway Co., 68 Iowa, 37, 25 N. W. 918; Case v. Railway Co., 64 Iowa, 762, 21 N. W. 30; Gandy v. Railway Co., 30 Iowa, 420, 6 Am. Rep. 682. In Bowen v. Ry. Co., 95 Mo. 268, 8 S. W. 230, the court said: “As between master and servant, the mere fact that an appliance proves to be defective, and the servant is injured, does not make out a prima facie case for the servant of negligence on the part of the master.” In Brymer v.

Railway Co., 90 Cal. 497, 27 Pac. 371, an instruction was asked which embodied a clause that “the mere fact that an accident occurred by which the plaintiff was injured does not fix the liability, or even raise a presumption that the defendant was at fault in providing machinery or appliances for the labor in which the plaintiff was engaged.” Its refusal was held to be sufficient cause for a new trial. In Huff v. Austin, 46 Ohio St. 386, 21 N. E. 864, 15 Am. St.

Rep. 613, a steam boiler exploded, injuring an employé of the owner, and it was held that the mere happening of the accident was not evidence of negligence. In Wormell v. Railroad Co., 79 Me. 397, 10 Atl. 49, 1 Am. St. Rep. 321, the court said: “There is no presumption of negligence on the part of the defendant from the fact alone that an accident has happened, or that the plaintiff has received an injury while in the employment of the defendant.” In Mining Co. v. Kitts, 42 Mich. 41, 3 N. W. 240, an employé was injured by the fall of-a bridge, the cause of which was unexplained.

The court held that, while it might be guessed or surmised that there was negligence somewhere, it did not extend beyond conjecture, and that, if a master was to be held liable under such circumstances, the rule that an employé assumes the ordinary risks of his employment would be wholly done away with. In Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338, the court said: “The jury should not have been allowed to Infer from the simple fact of the happening of the accident that there was negligence or unskillfulness on the part of the captain of the tug.

That is justified by no decided ease, and is in conflict with the well-established principle that it is incumbent upon the plaintiff in this class of cases to establish by affirmative proof that the injury received by him was caused by the negligent or unskillful act of the fellow servant” In Brownfield v. Railway Co., 107 Iowa, 254, 77 N. W. 1038, it was Sieid that the rule res ipsa loquitur did not apply to a case where a locomotive fireman was injured by the derailment of an engine on which he was riding caused by a broken axle. In Grant v. Railroad Co., 133 N. Y. 659, 31 N.

E. 220, an employé of the railroad company was injured 'by a defective drawhead. The court said that it may have been broken on account of a latent defect beyond the reach of inspection, and added: • '“Whether it did or not we do not know, and there is no evidence upon the subject. No facts are shown from which the cause of the accident can be snore than guessed at. There is food for speculation or wonder, but there is no evidence as to the cause.” The same rule is announced in Hodges v. Kimball, 104 Fed. 745, 44 C. C. A. 193; Bowes v. Hopkins, 84 Fed. 767, 28 C. C. A. 524; Peirce v. Kile, 80 Fed. 865, 26 C. C.

A. 201; Railway Company v. Thompson, 70 Fed. 944, 71 Fed. 531, 17 C. C. A. 524; Whitcomb v. Railway Co., 125 Mich. 572, 84 N. W. 1072; Higgins v. Fanning, 195 Pa. 599, 46 Atl. 102; Redmond v. Lumber Co., 96 Mich. 545, 55 N. W. 1004; Railway Co. v. Cook’s Adm’r, 24 Ky. Law Rep. 2152, 73 S. W. 765; Ouillette v. Overman Wheel Co., 162 Mass. 305, 38 N. E. 511; Railroad Company v. Kellogg, 55 Neb. 748, 76 N. W. 462.

If in this very case the derailment of the train had in fact been caused hy some defect in the engine or cars beyond the reach of that ordinary diligence and care in selection and subsequent inspection which the railway company owed to the deceased — and there is no doubt but that such defects do at times exist — a presumption of negligence arising from the accident itself might naturally result in imposing upon the company a responsibility for an undiscoverable defect.

Bearing in ::mnd the relation of the express messenger to the company, and the sales of law which are applicable thereto, it is clear that it was entitled f© the instruction requested, in order that it might be protected from such a contingency; and, not only that, but also because the fact of accident did not raise a presumption of excessive speed. The refusal of the trial court to give the instruction was erroneous. The judgment of the circuit court will be reversed, and the cause resmnded for a new trial. THAYER, Circuit Judge, dissents.