Kaemmerling v. Athletic Mining & Smelting Co.

SCOTT, District Judge.

This action was brought by the plaintiff in error, hereinafter referred to as the plaintiff, to recover damages for personal injury on account of being shocked and burned by electricity when attempting to operate an' electric switch. Plaintiff in his. petition alleges:

“That the Athletic Mining & Smelting Company is a corporation, organized and existing under and by virtue of the laws of the state of Missouri, with its principal place of business in Webb City, in said state, and that the defendant, Athletic Mining & Smelting Company, is engaged in the operation of a zinc smelter in and near South Ft. Smith, Sebastian county, Ark., and was so engaged at all times mentioned in this complaint-, that the plaintiff, John Kaemmerling, is a citizen and resident of the Ft. Smith district of Sebastian county, Ark., and was such at all times mentioned in this complaint; that this is a suit of a civil nature and that the amount in controversy exceeds, exclusive of costs and interest, the sum of $3,000, and that this suit is between residents of different states of the United States of America.

“That the plaintiff, John Kaemmerling, was employed by the Athletic Mining & Smelting Company for some time prior and up to November 16, 1921, when by reason of the negligence of the said Athletic Mining & Smelting Company, its agents, servants, and employees, as hereinafter set out, plaintiff was compelled to discontinue his connection with said company..

“That in connection and as part of the Athletic Mining & Smelting Company’s plant located in or near the town of South Ft. Smith, Ark., there is operated by said company an electric switch for the purpose of transferring the electric current supplied to the Athletic Mining & Smelting Company and used for the purpose of switching the electric current entering the property of said company from high power to low power and from low power to high power.

“That among other duties assigned to the plaintiff as part of his employment by the Athletic Mining & Smelting Company was the duty to transfer the electric current entering said company, as above set ont, from high power to low power and from low power to high power, when so directed, and that on or about the 16th day of November, 1921, between 8 o’clock and 9 o’clock p. m., on said date, plaintiff herein was instructed by one Charlie Doggett, whose duty it was to instruct the plaintiff when it was necessary to transfer from lower power to high power or from high power to low power, to transfer the electric current entering the Athletic Mining & Smelting Company from low power to high power, and that thereupon the plaintiff proceeded to throw out a low line current by pulling an iron lever suspended between two posts located on the property of the Athletic Mining & Smelting Company, and that the plaintiff then proceeded to pull out a knife switch located on the property of said company, after doing which the plaintiff then proceeded to throw in the high current line by taking hold of an iron lever that hangs down between two other posts located on the property of the Athletic Mining & Smelting Company and used for the purpose of throwing in the high power electric current. That in making said transfer the plaintiff, John Kaemmerling, followed exaetly the instructions he had theretofore received from one John Kalewein, an employee of the Athletic Mining & Smelting Company, and observed all the rules and regulations prescribed by said company in transferring said electric current, and at all times took all precautions for his own safety. That when plaintiff took hold of said iron lever which hangs down between the posts for the purpose of transferring the current entering the property of the defendant company from low power to high power he was severely shocked and burned by the electric current coming down said iron lever so that he was thrown violently and forcibly against the ground, which said throwing, together with the electric shock and burns, rendered the plaintiff unconscious, severely bruising and cutting his shoulder, ear, and temple, and by reason of the intensity, of the electric shock his hands, legs, and feet were severely burned, and the second finger on his right hand was so severely and painfully burned that the removal of said second finger on the plaintiff’s right hand was necessary at the second joint, and the plaintiff was so severely and painfully burned on the third finger on his right hand that it was necessary to scrape off of said finger all the flesh and skin to the bone, which left the said third finger on plaintiff’s right hand permanently stiff and unfit for use, and so severely and painfully burned the thumb of plaintiff’s right hand so that the same was turned in against the palm of plaintiff’s right hand and was rendered permanently stiff and unfit for use. ■ * *' *

“That the plaintiff, JohnKaemmerling, had nothing to do with the construction or maintenance of the iron lever or switch through which he was shocked, burned, and injured, as above set out, but that said iron lever, switch, and posts," and all equipment used by the said plaintiff in transferring the electric current, as above alleged, were under the exclusive management, supervision, and control of the defendant company, its agents, servants, and employees, and that the injuries herein complained of resulted directly and proximately from the negligence of said defendants, its agents, servants, and employees, in a manner unknown and unexplained to this plaintiff; and the plaintiff, John Kaemmerling, was employed by the defendant company as a fireman in its smelter located in South Ft. Smith, Ark., and that the duty imposed on him by said company to transfer the electric current entering the Athletic Mining & Smelting Company from high power to low power and from low power to high power was an additional and supplementary duty and not such a duty as is usually or ordinarily imposed upon one employed as a fireman, and the injury herein complained of is not one that usually occurs in the operation of a switch as above deseribéd, nor switches similar to it, but on the contrary is a rare and unusual occurrence in the operation of said switch; that said switch is a complicated mechanical device and that the cause of the injury herein complained of was not and could not be foreseen by this plaintiff.

“That as a direct and proximate result of the negligence complained of the plaintiff was injured, as above set out. * * ® ”

To plaintiff’s petition stating his cause of action as above set forth, the defendant interposed a general demurrer, which on submission was sustained. The plaintiff duly excepted to the ruling of the court, assigns the same as error, and now upon writ of error asks a reversal of the ruling of the trial court.

We have set out all that part of plaintiff’s petition which relates to his cause of action in hsec verba because we have before us a delicate question of pleading to determine. It will be observed that plaintiff does not set out the particular acts or omissions to which his general charge of negligence refers, his theory evidently being that the accident in question when described with its circumstances was such as would warrant an inference of negligence. That is, that the case is one to which, when on trial, that exceptional rule of evidence connoted by the quaint maxim, “Res ipsa loquitur,” will apply. Now this being a case between master and servant, and that rule being applicable to such cases only “under the most exceptional circumstances,” we have to determine whether the circumstances pleaded are so exceptional that with such legitimate inferences as may be drawn therefrom, would warrant the application of the rule referred to and carry the case to the jury.

The rule res ipsa loquitur, it must be understood, does not imply that “the mere happening of the accident” either raises a presumption of negligence against the defendant, or shifts the burden of proof from the plaintiff. The application of the rule referred to simply means that the occurrence with its accompanying circumstances is such as to warrant an inference that it was the result of causal negligence. The Supreme Court of the United States, in Sweeney v. Erving, 228 U. S. 233, 33 S. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905, used this language: “The rule of res ipsa loquitur does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this ease will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that Ms injuries were caused by a defect in the elevator, attributable to the defendant’s negligence. The law attaches no special weight, as proof, to the fact of an accident, but simply holds it to be sufficient for the consideration of the jury, even in the absence of any additional evidence.”

The Supreme Court, in Patton v. Texas and Pacific Railway Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361, made these observations :

“First. 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 wMch in the absence of some explanation or proof to the contrary is sufficient to sustain a verdict against Mm, for there is prima facie a breach of Ms contract to carry safely. (Citing eases.) A different ride obtains as to an employee. 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 employee to establish that the employer has been guilty of negligence. Texas & Pacific Railway v. Barrett, 166 U. S. 617. Second. That in the latter case it is not sufficient for the employee 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.”

Judge Sanborn, in delivering the opinion of this court in Northern Pacific Railway Co. v. Dixon, 139 F. 737, 71 C. C. A. 555, very clearly states the reason for restricting the rule of res ipsa loquitur in cases between master and servant. We here quote Judge Sanborn’s language:

“But the doctrine, ‘Res ipsa loquitur,’ is inapplicable to cases between master and servant brought to recover damages for negligence, because there are many possible causes of accidents during service, the risk of some of which, such as the negligence of fellow servants and the other ordinary dangers of the work, the servant assumes, while for the risk of others, such as the lack of ordinary care to construct or keep in repair the machinery or place of work, the master is responsible. The mere happening of an accident which injures a servant fails to indicate whether it resulted from one of the causes the risk of which is the servant’s or from one of those the risk of which is the master’s; and for this reason it raises no presumption that it was caused by the negligence of the latter. In sueh cases the burden of proof is always upon him who avers that the negligence, of the master caused the accident to establish that fact, and a naked finding, as in this case, that the accident occurred and that the servant was guilty of no negligence which contributed to cause his injury, is insufficient to sustain this burden, for there are many other causes than the negligence of the master and that of the Servant, such as the negligence of fellow .servants and latent and undiscoverable defects in place or machinery, which may have produced it.”

The reason of the rule as stated by Judge Sanborn is given further illustration in a later decision of the Supreme Court in Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66, 37 S. Ct. 598, 61 L. Ed. 995. That was a case brought under the federal Employers’ Liability Act, the accident being caused by the opening of a coupler on one of the ears of defendant, resulting in an automatic setting of the emergency brakes, which threw plaintiff from the train and under the wheels. It was urged in that ease that the doctrine of res ipsa loquitur did not apply between the master and the servant, and the contention supported by citing as authority Patton v. Texas & Pacific Ry. Co., supra, and Looney v. Metropolitan R. R. Co., 200 U. S. 480, 26 S. Ct. 303, 50 L. Ed. 564. Mr. Chief Justice White delivering the opinion of the court said :

“We think the contention is without merit because, conceding in the fullest measure the correctness of the ruling announced in the cases relied upon to the effect that negligence may not be inferred from the mere happening of an accident except under the most exceptional circumstances, we are of opinion sueh principle is here not controlling in view of the positive duty imposed by the statute upon the railroad to furnish safe appliances for the coupling of ears”— citing- St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 L. Ed. 1061, and other cases.

Now it will be recalled that the Safety Appliance Act provides:

“Any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, ear, or train had been brought to his knowledge.” Comp. St. § 8612.

So it will be seen that the inapplicability or rather restriction of the application of the rule res ipsa loquitur to cases of master and servant rests upon the principle that the servant by entering the employment of the master has assumed the risk of sueh employment, ordinarily including the negligence of fellow servants. But we also see shown in the holding of the Supreme Court in the Gotschall Case, supra, when the assumption of risk is removed, the reason for the rule fails.

In the light of what we have said it now becomes material to consider just what risks the servant does assume, and we quote from the text of 20 A. & E. Encyc. of L. (2d Ed.) 109: “Where a person voluntarily enters into a contract of hiring he assumes all the risks and hazards ordinarily and usually incident to such employment, and will-be presumed to have contracted with reference to such risks and hazards.” Again on page 112: “A servant will be presumed to have notice of and to have assumed the risks incident to all dangers and defects which, to a person of his experience and understanding, are or ought to be patent and obvious.” Again on page 114: “A servant who, on entering into a contract of employment, knows of the dangers of the premises or place of work, or by the use of ordinary care could see and understand them; assumes the risks which arise therefrom.” And on page 116: “Obvious dangers in the use of machinery and appliances, whether naturally inherent in the machinery and appliances or caused by imperfections and defects therein, cannot be made a ground of recovery for injuries sustained by the servant in the course of the employment.” The same rule applies to extrahazardous employments. Id. 119. “The rule that the servant assumes all risks ordinarily incident to the employment in which he engages does not apply to defects and dangers which he has no knowledge of, and could not discover by the use of ordinary care, and of which the master has or ought to have .knowledge. The servant is under no obligation to inspect the building in which he is placed to work, or the machinery and appliances with which he is furnished, to discover latent defects and dangers which render the business more than ordinarily hazardous, but has the right to assume that, the master has done his duty in furnishing a safe place to work and safe machinery and appliances.” Id. 121, 122.

From the foregoing it would appear—and the text is supported by a wilderness of authorities—that the servant does not assume the risk of hidden and unusual defects which in the exercise of ordinary care he could not discover. On the other hand the master is not liable for unforeseen accidents resulting from latent or hidden defects which he in the exercise of a degree of care commensurate with the business and situation could not discover.

Now we have seen that ordinarily the negligence of a fellow servant is one of the risks which an employee assumes. But we must eliminate that factor in the instant case. The accident in question occurred in the state of Arkansas, and at the time of the happening a statute of that state of which we must take judicial notice was in force that provides as follows:

“Hereafter * * * all corporations of every kind and character * * * who may employ agents, servants or employees, such agents, servants or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by any such agent, employee or servant, resulting from the careless omission of duty or negligence of such employer, or which may result from the carelessness, omission of duty or negligence of any other agent, servant or employee of the said employer, in the same manner and to the same extent as if the carelessness, omission of duty or negligence causing the injury or death was that of the employer.” Act of March 8, 1907, being section 7137, Crawford & Moses’ Digest of the Statutes of Arkansas, 1921.

Now it would seem, considering all of the allegations of plaintiff’s petition and the law of Arkansas, that the case is narrowed down to an assumption and one alternative. The electric current was diverted into the iron lever by reason of some hidden defect or cause which the defendant in the exercise of that high degree of care imposed upon those using high powered electric current ought to have discovered, in which case the defendant would be liable; or the electric current was diverted by reason of some hidden defect or cause of such recent origin and of such obscure character that the defendant in the exercise of the degree of care stated would obtain no knowledge, in which case the defendant would not be liable. "Which of these conclusions ought the court to have drawn? In answering this question we must hold constantly in mind that the case below was determined on demurrer. The allegations of plaintiff’s petition are not only general but leave some things to inference. But inferences are permitted to be drawn legitimately in interpreting a pleading. Indeed, the sufficiency of a pleading is tested by the facts pleaded with their legitimate inferences. A plaintiff in stating a cause of action pleads ultimate or general facts, not particular or evidential facts. Indeed, it is elementary that the pleading of evidence is reprehensible. Such being the case, the inferences which a trial court is permitted to draw from the ultimate or general facts found in a pleading are more general and of wider scope than the particular inferences drawn by a jury from the many evidential facts adduced on the trial. Now it seems to us that these principles and considerations find peculiar applicability in those rare cases wherein the particular facts and causal circumstances are obscure and where necessarily much is left to inference. The rule of evidence characterized as res ipsa loquitur finds its origin in the necessities of the case and in the reluctance of courts to deny justice and a remedy merely because the particular causal facts although present cannot be isolated and particularly identified. This rule of evidence ought to, and we think it does, have its concomitant rule of pleading. As stated by Judge Hammond in Sledge v. Gayoso Hotel Co. (C. C.) 43 F. 463: “It is always injudicious for a court to undertake, as a matter of mere pleading, to determine a question of negligence, either original or contributory, in any ease where the declaration or plea contains a substantial cause of action or defense. Negligence is a mixed question of law and fact, sometimes largely depending upon inferences to be drawn wholly by the jury, and for the court to assume to decide them upon the necessarily brief statements of the conclusions of fact found in a pleading would be to usurp the function of the jury, or at least to trench upon, it with insufficient knowledge of the facts.”

“The rule is well-nigh universal that, in an action for negligence, the plaintiff need not set out in detail the specific acts constituting the negligence complained of, as this would be pleading the evidence.” 14 Encyc. of Pleading and Evidence, 333. “A general averment of negligence in the particular act complained of, resulting in damages, is good, at least as against a general demurrer.” Id. 334. “But the aet done or omitted which constitutes the negligence complained of should be stated with a reasonable degree of particularity.” Id. 335.

Now a reasonable degree of particularity must depend upon the eirenmstances and nature of the case. In a ease to which the rule res ipsa loquitur is at all applicable, reason does not require the plaintiff to state the facts with that degree of particularity which would be required in ordinary cases. Now in the instant case a careful analysis of all the facts set up in the plaintiff’s petition with their legitimate inferences drawn indicates that the plaintiff declares that Ms injury was caused by the presence of a highly dangerous current of electricity in the iron lever which ho was compelled to use in the performance of his duty. He charges that the presence of the current in the lever was due to the negligence of the defendant. It seems to us that these averments satisfy the elementary rules of pleading in such cases, and that any inferential doubt that might linger touching the liability of the defendant should await the introduction of evidence on the trial. Such evidence in all probability will afford new grounds of inference more definite and particular in their character. The character and condition of the appliances, the local situation, weather conditions, matters of insulation, spaces and distances between conductive materials, grounding agencies, and protection against grounding through the body of the operator, the presence of moisture and protection against moisture, all those may become material to be considered in drawing some inferences and eliminating others.

For the reasons stated in this opinion the decision of the trial court is reversed.

KENYON, Circuit Judge, concurs in the result.