Denton v. Mammoth Spring Electric Light & Power Co.

Hart, J., (after stating the facts). Where the servant has been injured while in the course of his employment, the fact of the accident carries with it no presumption of negligence on the part of the master, and it. is an affirmative fact for the injured employee to establish that the employer ’had been guilty of negligence. St. Louis, I. M. & S. Ry. Co. v. Harper, 44 Ark. 524. In the case of Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, Mr Justice Brewer, speaking for the court, said: “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 liable 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 the case of Coin v. John M. Talge Lounge Co., 222 Mo. 488, 17 A. & E. Ann. Cas. 888, the court held: “If an accident causing injury to a servant may have resulted from either one of two causes, for one of which the master is liable and for the other of which he is not, the servant, in an action to recover for the injury, must show with reasonable certainty that the cause for which the master is liable produced the injury; and, if the evidence merely leaves this to conjecture, the plaintiff must fail in his action.” To the same effect see Green v. Southern Railway Company, 5 A. & E. Ann. Cas. 165, and case note; Schultz v. C., M. & St. P. R. Co., 116 Wis. 31. If the appellant was injured by coming in contact with the primary and secondary wires with his body, it is evident that he can not recover, for he himself testified that he knew and fully appreciated this danger. He admits that he knew some of the wires were heavily charged with electricity before he began to climb the pole, and that he fully understood the risk he ran in working among them. Therefore, if he was injured by his body coming in contact with the primary and secondary wires, he must be deemed to have assumed the risk. Neither the appellant nor any of his witnesses undertake to to say just how the accident happened. The appellant himself testified that it could have been produced by any one of three causes: (1) by coming in contact with two wires, (2) by lightning, (3) by coming in contact with one of the primary wires and the guy wire at the same time. Under the testimony there is no more reason to suppose that it was due from one of these causes than the other. The cause of the accident is purely a matter of conjecture, and “a servant can not recover where it is merely a matter of conjecture, surmise, speculation or supposition, whether the injury was or was not due to the negligence of the master.” 2 Labatt on Master & Servant, 167. Therefore, the court properly directed a verdict for appellee, and the judgment is affirmed.