
    PEIRCE v. KILE.
    (Circuit Court of Appeals, Seventh Circuit.
    May 31, 1897.)
    No. 348.
    1. Master and Servant—Negligence—Presumptions.
    As between master and servant, proof of the occurrence of an accident raises no presumption of negligence. If the circumstances speak the negligence of the master, and that can be deduced therefrom as a natural and reasonáble inference, the duty of explanation is cast upon him, but proof to warrant such inference must be brought forward by him who charges the negligence, and it cannot be established by conjecture or speculation, or drawn from a presumption.
    2. Same—Safe Appliances—Directing Verdict.
    Where the only evidence of negligence as the cause of an accident is the fact that a rope broke, and it is clearly shown that the rope was of a size and quality sufficient for the work in which it was used, that there was nó sign of wear or defect in it, and that the break was a fresh one, it is error to refuse to direct a verdict for the defendant, who is charged with negligence in furnishing an improper or inadequate rope.
    In Error to the Circuit Court of the United States for the Southern District of Illinois.
    This action was brought by Robert Kile, administrator of the estate of Eli M. Davis, deceased, defendant in error, against the appellant, Robert B. F. Peirce, receiver of the Toledo, St. Louis & Kansas City Railroad Company, to recover damages for negligently causing the death of Eli M. Davis. The only count of the declaration upon which reliance is placed is predicated upon the negligence of the plaintiff in error in failing to furnish proper and adequate machinery and appliances, and in furnishing improper and inadequate appliances, for use by the intestate of the defendant in error in the course of his work. The plea was the general issue. The trial resulted in a verdict for the plaintiff below, and to reverse the judgment rendered upon the verdict this writ of error was sued out from this court. The evidence established the following facts: Eli M. Davis was a bridge laborer, and one of the bridge gang in the service of the receiver of the railroad. At the time of the accident he was employed, under the supervision of a foreman, in loading piles on flat cars. The piles were to be used in the repairing and rebuilding of bridges and were being loaded for transportation over the road. They were from 58 to 60 feet in length, tapering from 23 to 24 inches in diameter at the butt to about 10 inches at the smaller end. The bridge gang consisted of six men, who were aided in this work by a track gang, and the work proceeded in the presence of a number of the citizens of the locality, who were standing by, watching the progress of the work. The flat cars upon which the piles were loaded were provided with iron sockets, known as “pockets,” placed at stated intervals around the lower edge of the car. Stakes or standards were placed in the sockets of the car on the further side from the stack of piles. Some of these were split saplings, and were placed in the sockets with the round side towards the outside of the ear. Others were round saplings. Two switch ties, 1C feet long and 10 inches wide, were placed, one end resting on the car and the other upon the ground on that side of the car nearest the piles, and were used as skids or slides up which the piles were hauled upon the car by means of two tackles consisting of two double blocks with lines reeved through them. These tackles were attached to the two outer stakes on the outer side of the car by slings of rope passed around the stakes into the ends of which the blocks were hooked. The ropes used in the slings were l^-ineh Manilla ropes. In one tackle a 1-inch fall line was used, and in the other a line of 1%-inch. The pile was rolled to the foot of the skids, and the tackle attached to both ends of the pile; the smaller rope to the smaller end. The men engaged pulled first on the one tackle, hauling that end of the pile upon the skid some two feet, and the fall rope being then fastened to prevent the pile slipping down, the opposite end of the pile was raised in like manner, and so the pile was hauled up upon the car. Occasionally the piles would stick upon the skids or become jammed. To overcome this obstruction, a pinch bar was used to raise the pile upon the skid when the men hauled upon the tackle. At the time of the accident two layers of piles had been loaded upon the car, occupying a space of three feet in height above the floor of the ear. The accident occurred during the hauling of the last pile, which was somewhat heavier than the others, and when the pile had been hauled upon both skids nearly to the top. Some of the bridge gang and section men were hauling on the fall rope at the west end of the pile, assisted by some bystanders. Davis, standing at the west side of the skid, was prying up the pile with a pinch bar to overcome some obstruction. The men engaged in hauling on the, fall rope tugged several times with the rope, but could not move the pile, and while thus hauling upon the rope the sling- holding the tackle to the post on the west end broke, allowing the pile to slide down the skids, striking Davis upon the chest, and throwing him against the bank of a ditch at the side of the track, and instantly killing him. After the accident the rope was examined, and showed a clean, new break, presenting no sign of wear or defect. This rope was a Manilla rope D4 inches in diameter, and was of the best grade on the American market. In size it was somewhat heavier than was ordinarily used for work of this character. Its breaking strength was about 4,000 pounds. It had been supplied, through the master of bridges, to the foreman, about a year before the accident, and had been used occasionally when heavy work was done, about four or five times a month. There was no evidence given by the plaintiff below, other than the fact of the accident itself, to show that the rope was defective or insufficient. The evidence upon the part of the defendant below was to the effect that the rope was of the best quality, of sufficient strength for the work in which it was employed, was in good condition and was not defective. At the conclusion of the evidence the court was moved to direct the jury to return a verdict for the defendant. This motion was overruled by the court, to which ruling a proper exception was reserved, and such ruling is assigned for error.
    Clarence Brown and Charles A. Schmettau, for plaintiff in error.
    F. W. Dundas, for defendant in error.
    Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.
   JENKINS, Circuit Judge

(after stating the facts as above). The declaration charges a failure by the master to furnish adequate machinery and appliances, and negligence upon his part in furnishing appliances which were improper, inadequate, and of insufficient strength for the required service, and that the death of the defendant in error resulted from such negligent discharge by him of his duty. It was, therefore, incumbent upon the defendant in error to prove the negligence asserted in one or other of the particulars charged, and that such failure in duty was the proximate cause of the death. The duty of the master is to use ordinary care to furnish appliances reasonably safe and suitable for the use of the servant, such as, with reasonable care upon the part of the servant, can be used without danger except such as is incident to the business in which such instrumentalities are employed. Reed v. Stockmeyer, 34 U. S. App. 727, 20 C. C. A. 381, and 7 Fed. 186. But the master is not responsible for the negligent or unskillful use by the servant or by the foreman of his gang of laborers of the necessary and safe tools and appliances furnished. Railway Co. v. Brown, 34 U. S. App. 759, 20 C. C. A. 117, and 73 Fed. 970. The undisputed evidence at the trial was to the effect that the rope furnished was sufficient for the performance of the work; that it was a Manilla rope,—the best quality of rope in the market; that after the accident the rope exhibited a clean, new break, the strands throughout being bright, and without sign of wear or defect. There was no evidence, other than the fact that the rope broke, to suggest insufficiency or defect. The general rule is not disputed that, as between master and servant, the proof of the occurrence of an accident raises no presumption of negligence. If the circumstances surrounding the transaction speak the negligence of the master, and that can be deduced therefrom as a natural and reasonable inference, the duty of explanation is cast upon the master. Bahr v. Lombard, 53 N. J. Law, 233, 21 Atl. 190, and 23 Atl. 167; McKinnon v. Norcross, 118 Mass. 533, 20 N. E. 183; Redmond v. Lumber Co., 96 Mich. 515, 55 N. W. 1001. The proof to warrant such inference must be brought forward by him who charges the negligence, and upon whom is the burden of proof. The inference of negligence cannot be established by conjecture or speculation, or drawn from a presumption, but must be founded upon some established fact. The law of the case was correctly apprehended and stated by the court in its charge to the jury, but the court erred in not directing a verdict for the defendant below. There was absolutely no evidence, other than the fact of the breaking of the rope, from which negligence of the master could justly be inferred. The accident may have occurred from (1) the insufficiency of the rope, (2) a latent defect in the rope, (3) its improper use and overstraining, (!) the manner of its adjustment to the standard, (5) the character of the standard used. It is urged that it was proper to submit the case to the jury upon the ground that they had the right to infer that the rope was insufficient, for the reason that the other possible causes of the accident were excluded by the evidence. This reasoning is fallacious in its premises. The evidence did not exclude all other probable causes of the breaking of the rope. To the contrary, it suggests as strongly probable that the accident was due to a great and inconsiderate strain upon the rope during the obstruction of the pile, and while Davis was endeavoring with the pinch bar to overcome the obstruction, and before it could be surmounted, and through the great lateral strain upon the rope caused by the pulling on it by 15 or 20 men while the pile was thus obstructed. Whether that be the correct solution of the cause of the accident or not, it is certain that not only were all other probable causes of the insufficiency of the rope not excluded by the evidence, but the testimony clearly established its sufficiency. The plaintiff below, therefore, had failed to establish any neglect of duty upon the part of the defendant below causing this injury, and it was error not to direct a verdict as requested. The judgment will be reversed, and the cause remanded, with directions to the court below to grant a new trial.  