trestles. As to whether this car was loaded or not, Moit was without knowledge. The door of the car on his side, as he passed it going to his work under the trucks, was fastened. Brigance testified that "the car was loaded with shavings, sawdust, trash, out of the shed." But Brigance did not discover this until after the accident, and the testimony he thus gives is far from satisfactory upon the point that the car was "loaded" in the common acceptation of the term, and needed to be supported by trestles when jacked-up. Indeed, there is no proof whatever upon the latter point.

The only explanation given, or offered, of the cause of the accident, was by Brigance, who, when asked what caused the car to fall, said: "I could not tell, without the ground was froze and kinder thawing that evening, and the jacks slipped. The car slued and caused it to fall, I think."

This is a mere conjecture on the part of Brigance, for he says his back was turned to the car when it fell. There is no other testimony on this point; nothing tending to show that the jacks were defective, or that they gave way, or the car slued because of any fault on the part of the company.

1. Plaintiff's case was based upon the alleged duty of the railroad company to provide the plaintiff with a reasonably safe place in which to work and reasonably safe appliances with which to work. It contended that the car fell, either because the jacks were defective or were used in an improper and inefficient way; and it insisted that under the doctrine of res ipsa loquitur the fact of the accident itself made a prima facie case of negligence which the court should have submitted to the jury.

In the recent cases of Illinois Central R. R. v. Coughlin, 132 Fed. 801, 65 C. C. A. 101, Cincinnati, etc., R. R. Co. v. South Fork Coal Co., 139 Fed. 528, 71 C. C. A. 316, 1 L. R. A. (N. S.) 533, and Carnegie Steel Co. v. Albert Byers (C. C. A.) 149 Fed. 667, we have had occasion to apply the rule laid down by the Supreme Court in Texas & Pacific R. R. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136, and Patton v. Texas & Pacific R. R. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, wherein it was pointed out that what might make a prima facie case of negligence against a railroad company in favor of a passenger or a stranger would not apply as between the company and its employé. In the latter case there was no presumption of negligence arising from the accident itself, but the liability of the company to its employé must be made out by proof that the company was negligent, and this negligence brought about the resulting injury. If the testimony left the matter uncertain, indicating only that one of a number of things may have brought about the injury, for some of which the company was responsible, and for others not, it was not for the jury to guess between these numerous causes and find that the negligence of the company was the real cause, when there was no satisfactory foundation in the testimony for that conclusion. 179 U. S. 663, 21 Sup. Ct. 275, 45 L. Ed. 361. Thus, in the case of Carnegie Steel Co. v. Albert Byers, where a hydraulic jack used to elevate cars of molten metal, on which an electric locomotive partly stood, suddenly and unexpectedly, and without any apparent cause,

arose from its position, tipping the locomotive up and injuring an employé of the company who was upon it, we held that the mere fact that the elevator or jack arose without any apparent cause was not sufficient to make a prima facie case of negligence against the company. "The burden, however, was upon the plaintiff to make substantive proof of some negligence-the omission of some duty which the defendant owed to him. It was incumbent upon him to show either that the jack was an improper appliance, or that the company had been negligent in keeping it in reasonably safe repair. Looney v. Metropolitan R. R. Co., 200 U. S. 480, 26 Sup. Ct. 303, 50 L. Ed. 564; Ill. Cen. R. R. Co. v. Coughlin, 132 Fed. 801, 803, 65 C. C. A. 101; Texas & Pacific R. R. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136. There was no substantial evidence from which the jury might reasonably find that this accident was due to negligence. Its cause is wrapped in doubt and uncertainty. It may have happened from some cause for which the defendant was not liable or from actionable negligence. It was the duty of the plaintiff to make a case from which a jury might reasonably find negligence. This it did not

do." 149 Fed. 673.

In the present case, there was no proof that the jacks were not reasonably safe appliances for the work for which they were designed. Nor was there any proof that they had been improperly used in jacking up the end of the car. We have referred to the proof respecting the loading of the car. The testimony of Brigance was not in our opinion sufficient to warrant the conclusion that the car was "loaded," in the sense that it required trestles to support the end which was jacked up. If it be urged that the car fell, and that is proof enough that either the jacks were defective or they were improperly used, it may be pointed out that any outside force which jarred the car and caused its lifted end to slue might have caused the jacks to give way. The chance of this happening was one taken by the car repairers. Indeed, the witness Brigance suggests an intervening cause which was purely external, namely, the thawing of the ground on which the jacks rested. Obviously, the unequal sinking of the jacks through thawing might disturb the equilibrium of the end of the car and cause it to slue and fall. Other illustrations might be given of the fact that the car might fall without any negligence on the part of the railroad company; but such negligence is essential, and must be supported by substantive proof in order to justify the submission of the case to the jury. Looney v. Metropolitan R. R. Co., 200 U. S. 480, 486, 488, 26 Sup. Ct. 303, 50 L. Ed. 564.

2. It is vigorously urged that in jacking up the end of the car the railroad company was providing a place for Moit to work, that whoever assisted in jacking up the car was doing the master's work, and, since the accident resulted from a failure to do this work, the company should be held responsible. This contention does not appeal to us. The jacking up of the end of the car for the purpose of removing the trucks and replacing a bolster was not a part of the master's duty of providing a reasonably safe place in which to work, but a part of the servants' duty of repairing the car. Wabash R. R. Co. v. Propst, 92 Ill. App. 485. That duty was intrusted to a number of employés,

including the plaintiff, Moit. It is true the car was jacked up and the trucks removed before Moit reached the ground. This work was done by his fellow servants. If they, or any of them, were negligent in doing it, it was the risk he assumed by reason of his employment. Of course, the rule of fellow servant does not apply to the condition of the jacks that were furnished by the railroad company for the purpose of lifting up the end of the car. That appliance had to be a reasonably safe one, and, if there were proof that the accident resulted from the negligent furnishing of insufficient or defective jacks, the railroad company would be responsible; but there is no such proof. The judgment is affirmed.

REED v. MOORE & MCFERRIN.

(Circuit Court of Appeals, Sixth Circuit. May 15, 1907.)

No. 1,617.

1. MASTER AND SERVANT-INJURIES TO SERVANT-ASSUMED RISK. Plaintiff was employed in a box factory as a belt repairer and assistant to the machinery foreman, to whose orders he was subject. The freight elevator having fallen, plaintiff and the foreman started to repair it, and, without making any examination of the machinery, assumed that the elevator fell because of the breaking of the cord. A new cord was put in and a stop put on for the ground floor, when plaintiff and the foreman went up on the elevator to the second floor to put the stop on there, but before they could do so the elevator fell, injuring both of them. After the accident a complete examination of the elevator disclosed that the drum shaft was bent, and that the sprocket wheel and gearing were so broken as to be inoperative, either of which might have caused the accident. Held, that plaintiff assumed the risk in assisting to put the elevator in repair.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 551-558.

Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

2. SAME-FELLOW SERVANTS.

Plaintiff and the foreman, while engaged in repairing the elevator, were fellow servants, so that plaintiff could not recover for the foreman's negligence in failing to discover the defects in the elevator.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 486-490.

Who are fellow servants, see note to Northern Pac. R. Co. v. Smith, S C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]

In Error to the Circuit Court of the United States for the Western District of Tennessee.

Jere Horn, for plaintiff in error.

C. L. Marsilliott and C. A. Lightner, for defendant in error.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS, Circuit Judge. The plaintiff in error, J. H. Reed, was injured by the fall of a freight elevator in the box factory, at Memphis, Tenn., of the defendants in error, Moore & McFerrin. There was no substantial dispute as to the facts of the case, and the court be

low directed a verdict for the defendants. The elevator was an old one, and had several times been repaired. Its gearing, consisting of the sprocket wheel, cogs, etc., connected with the shaft and constituting the operating mechanism of the device, was located on the ground floor and covered by a sheet-iron hood, which not only protected it from the dust, but screened it from observation. The elevator was used for the purpose of carrying material from the ground floor to the second floor only, a distance of about 12 feet.

The duty of keeping this elevator, and, indeed, all the machinery of the factory, in repair, was intrusted to one Antone, the foreman of machinery in the plant. The plaintiff in error was employed as a belt repairer, but he acted as an assistant to Antone in making repairs on the machinery, and in that sense was a subordinate of Antone, and subject to his orders. On September 13, 1905, the elevator suddenly fell from the second to the first floor. It was loaded when it fell, but no persons were on it. Antone was notified of the fall, and called upon Reed to go with him and assist in repairing it. When Antone and Reed reached the elevator, they found that the cord which shifts the elevator up and down, was broken. The elevator was then at the ground floor. They took the old cord off and replaced it by a new one. Then it was necessary to place the stops on the new cord, so as to stop the elevator at the usual places. They put the stop for the ground floor on, and then went up on the elevator to the second floor to put the top stop on; but, before they could do it, the elevator fell, injuring both of them. It seems that no examination of the operating mechanism of the elevator, either that outside or under the hood, except the cable or cord used to shift the elevator, which they found broken on their arrival, was made by Antone or Reed. When they found the elevator on the ground floor after its fall, and the shifting cable broken, they assumed that the break in this cable was the cause of the accident, and made no further examination. After the accident, a complete examination of the elevator, both that outside and that under the hood, was made, and it appeared that the fall was not due to the break in the shifting cable, but to defects in the operating mechanism; it being due either to the fact that the shaft which held the drum that carried the cable was bent about an inch, or that the sprocket wheel and gearing were so broken as to be inoperative. The sprocket wheel and gearing were covered by a hood; but it seems that the bent shaft was observable outside. It is fair to state that there was some conflict as to whether the shaft was bent before or after the elevator fell. It may have been bent by the fall of the elevator. The defect was not noticed before the elevator fell. The testimony narrows the cause of the accident to either the bent shaft or the broken gearing. One of these causes was observable outside the hood; the other was covered by the hood. One or both of the causes must have existed before the elevator fell the first time; for, after the shifting cable was repaired, the elevator again fell, indicating it was not the break in this cable which caused it to fall.

The legal question involved is whether, under all the circumstances, Reed assumed the risk involved in assisting to put this broken elevator

in repair. The general rule is that the employer is obliged, not only to furnish his employés a reasonably safe place to work in, but reasonably safe appliances to work with. This rule, however, is subject to the exception that if the employé either knows or ought to know that the place or the machinery is in a dangerous condition, and he is engaged in the work of putting in repair, he assumes the risks incident to the work of repair. He cannot act upon the assumption that the machinery is in repair, when he was employed for the very purpose of putting it in repair. There are many cases illustrating different phases of this rule. The exception applies, not only to the work of repair, but also to the risks incident to the work of construction. Thus, in Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433, 28 L. Ed. 440, it was held that:

"The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not oblige him to keep a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants."

The case of Gulf, etc., Ry. Co. v. Jackson, 65 Fed. 48, 12 C. C. A. 507 (Eighth Circuit), grew out of the repair of a portion of the roadbed of the railroad which had been undermined. The accident was due to the obstructed condition of the ground where the work of repair was being done, and it was held that under the circumstances the injured person assumed the risks attendant upon such obstructed condition. In the case of C. & O. Ry. Co. v. Hennessey, 96 Fed. 713, 38 C. C. A. 307 (this circuit), where a servant was injured while handling a defective car which had been placed upon a special side track used for such cars, it was held that the placing of the car on the special side track was notice to the employé of its defective condition, and he was held to assume the risks of handling it. A somewhat similar case was that of Hauss v. Lake Erie & Western R. R. Co., 105 Fed. 733, 46 C. C. A. 94 (this circuit). Here a brakeman was injured through catching his foot in an unblocked frog on a part of the track under construction. Notice that work was being done on the track was held sufficient warning to the brakeman, and he was held to assume the risks of working about the track in its existing condition.

The case of Kelley v. Chicago, etc., Ry. Co., 35 Minn. 490, 29 N. W. 173, grew out of the handling by a brakeman of a disabled car. He was held to have assumed the risk. The case of Carlson v. Oregon Short Line Ry. Co., 21 Or. 450, 28 Pac. 497, grew out of the repair of the railroad track. The servant engaged in the work of repair was held to have taken upon himself the ordinary risks incident to such work, but not latent risks known to the master, but not disclosed to him or discoverable by the use of proper diligence. Another repair case, but this time of a trolley line, was that of Broderick v. St. Paul City Ry. Co., 74 Minn. 163, 77 N. W. 28. In this case the work of repair was the replacing of a wooden by an iron pole. In the case of Brick v. Rochester, etc., R. R. Co., 98 Ñ. Y. 211, the plaintiff's intestate was killed while riding upon a construction train used in the work of repair. The train ran off the track by reason of