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 out, 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 exactly 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, John Kaemmerling, 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 described, 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 hæc 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 case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his 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 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. (Citing cases.) A different rule obtains as to an employee. The fact of accident carries with it no presumption of...
