ty made during the trial of actions brought to recover damages for personal injuries to OLD COLONY STREET RAILWAY COM- the female plaintiff which were alleged to PANY. Kezia P. CASSADY v. SAME. (184 Mass. 156.) have resulted from defendant's negligence, in which actions a verdict was returned in plaintiffs' favor. Overruled. The facts are stated in the opinion. Messrs. Henry F. Hurlburt and Damon E. Hall, for defendant: Plaintiffs have failed to show that Mrs. Cassady suffered that actual physical injury, so far as burning is concerned, which entitled her to go to the jury; in other words, the painless and discomfortless singeing of 2. Where witnesses testify that the the eyebrows is not a physical injury. 1. The ordinary burning out of a fuse in an electric car is not prima facie evidence of negligence on the part of the carrier. burning out of a fuse on an electric car is attended with flame and the burning of a passenger, the jury may find that the results were unusual and would not have occurred if the fuse had been in proper condition, and that the carrier was guilty of negligence in failing to maintain such condition. 3. One operating an electric car may be guilty of negligence in placing a fuse box under the seat of an open car in such a position that its burning out will be likely to injure a person occupying the seat. 4. The owner of an electric street car, against whom suit is brought by a passenger injured by the burning out of a fuse, is not entitled to an instruction that the doctrine of res ispsa loquitur does not apply, where the evidence might justify a finding that the resulting flame was greatly in excess of what would have resulted had the fuse been in proper condition, and the imperfect condition of the fuse could have been discovered by the use of reasonable care. 5. One injured by the burning out of a fuse on an electric car does not lose the right to rely upon the doctrine of res ipsa loquitur by attempting to show particularly the cause of the accident, if at the close of the testimony the cause does not clearly appear, or if there is a dispute as to what such cause was. (September 3, 1903.) EXCEPTIONS by defendant to rulings of the Superior Court for Plymouth Coun NOTE. As to presumption of negligence from accident causing injury to passenger on street car, see cases in note to Barnowski v. Helson, 15 L. R. A. 33; also Hawkins v. Front Street Cable R. Co. 16 L. R. A. 808; Spellman v. Lin Berard v. Boston & 4. R. Co. 177 Mass. 179, 58 N. E. 586; Warren v. Boston & M. R. Co. 163 Mass. 484, 40 N. E. 895; Canning v. Williamstown, 1 Cush. 451; Spade v. Lynn & B. R. Co. 168 Mass. 285, 38 L. R. A. 512, 60 Am. St. Rep. 393, 47 N. E. 88; Homans v. Boston Elev. R. Co. 180 Mass. 456, 57 L. R. A. 291, 91 Am. St. Rep. 324, 62 N. E. 737. The singeing of plaintiff's veil, if, in fact, it was singed, was not a "physical injury." White v. Sander, 168 Mass. 296, 47 N. E. 90; Smith v. Postal Teleg. Cable Co. 174 Mass. 576, 47 L. R. A. 323, 75 Am. St. Rep. 374, 55 N. E. 380. Evidence which merely raises a suspicion, or a surmise, or a conjecture, is not enough to be entitled to be submitted to the jury. Hillyer v. Dickinson, 154 Mass. 502, 28 N. E. 905; Shea v. Wellington, 163 Mass. 364, 40 N. E. 173; Brooks v. Old Colony R. Co. 168 Mass. 164, 46 N. E: 566; Wadsworth v. Boston Elev. R. Co. 182 Mass. 572, 66 N. E. 421. The plaintiff cannot rely upon res ipsa loquitur. Plaintiff's have waived the privilege of relying upon a prima facie case of negligence, and have assumed the burden of proving that the happening was due solely to the 'defendant's negligence in respect to some one coln Rapid Transit Co. 20 L. R. A. 316; Whalen v. Consolidated Traction Co. 41 L. R. A. 836; Keator v. Scranton Traction Co. 44 L. R. A. 546; and Harrison v. Sutter Street R. Co. 55 L. R. A. 608. or all of the allegations of negligence in the declarations. Winship v. New York, N. H. & H. R. Co. 170 Mass. 464, 49 N. E. 647; Buckland v. New York, N. H. & H. R. Co. 181 Mass. 3, 62 N. E. 955; Galligan v. Old Colony Street R. Co. 182 Mass. 211, 65 N. E. 48. The burning out of a fuse on an electric car is not negligence per se, nor does it import negligence. It is undoubtedly true that, if the motors were large enough to meet every emergency, the fuse would never blow out, because the motors would never be overloaded. But that proposition fails absolutely to take into account the true measure of the defendant's duty. It is bound to exercise "the utmost care and diligence," but this "does not mean the utmost care and diligence which men are capable of exercising. It means the utmost care consistent with the nature of the carrier's undertaking, and with a due regard for all the other matters which ought to be considered in conducting the business. Among these are the speed which is desirable, the prices which passengers can afford to pay, the necessary cost of different devices and provisions for safety, and the relative risk of injury from different possible causes of it." Dodge v. Boston & B. S. S. Co. 148 Mass. 207, 2 L. R. A. 83, 12 Am. St. Rep. 541, 19 N. E. 373. The blowing off of the automatic safety valve has never been held negligence. Howard v. Union Freight R. Co. 156 Mass. 159, 30 N. E. 479; Duvall v. Baltimore & O. R. Co. 73 Md. 516, 21 Atl. 496. The cases of the burning out of controllers are not analogous to the "fuse" cases, and should be discriminated from them. Poulsen v. Nassau Electric R. Co. 30 App. Div. 246, 51 N. Y. Supp. 933; Buckbee v. Third Ave. R. Co. 64 App. Div. 360, 72 N. Y. Supp. 217; Dunlay v. United Traction Co. 18 Pa. Super. Ct. 206. The fuse box was placed in the position left for it by the car builders, and the place where the defendant placed all of its fuse boxes. Evidence which tends to show negligence on the part of the corporation will not support an allegation that the negligence was that of its servants and agents. Com. v. Boston & M. R. Co. 133 Mass. 383. There was not a scintilla of evidence of fered by the plaintiff's upon the question of the proper or improper location of the fuse box from one end of the case to the other. Tully v. Fitchburg R. Co. 134 Mass. 499; Munroe v. Carlisle, 176 Mass. 199, 57 N. E. 332; Francisco v. Troy & L. R. Co. 78 Hun, 13, 29 N. Y. Supp. 247. It was the location of the fuse which was complained of, and not of the fuse box. Buckland v. New York, N. H. & H. R. Co. 181 Mass. 3, 62 N. E. 955; Lafflin v. Buffalo & S. W. R. Co. 106 N. Y. 136, 60 Am. Rep. 433, 12 N. E. 599; Kelly v. New York & S. B. R. Co. 109 N. Y. 44, 15 N. E. 879; Fox v. New York, 70 Hun, 181, 24 N. Y. Supp. 43; Crafter v. Metropolitan R. Co. L. R. 1 C. P. 300. Messrs. George R. Swasey and Thomas H. Buttimer for plaintiff. Hammond, J., delivered the opinion of the court: The first ground of defense is that there was no evidence of negligence of the defendant. It is conceded that the fuse burned out, but the defendant contends that the burning out of a fuse is not negligence per se, nor does it import negligence. The box containing the fuse was fastened to the sill of the open car, at a place directly underneath the portion of the seat upon which Mrs. Cassady was sitting. A fuse consists of a piece of metallic alloy, similar in nature to soft solder, 1 or more inches in length, connected at each end with a small circular piece of copper. These pieces of copper are called the "terminals," and they are so cut that they can easily be slipped under the thumb screws and clamped in place. The fuse and thumb screws are held in what is called the "fuse box." A wire leading from one thumb screw up through the roof of the car to the trolley wire conducts the electricity from the trolley wire to the box. From the other thumb screw there is a wire leading to the motors. When the two screws are connected by the fuse, there is a direct path for the electricity from the trolley wire to the motors. The purpose in using the fuse is to protect the wiring and the motors from an excessive current of electricity. It is constructed to withstand something less than the maximum current which the wires and motors are capable exceeds the maximum strength of the fuse, of carrying. When the current of electricity the metallic alloy melts with more or less of a report and flame, and, the electrical path between the trolley wire and motors being thereby broken, the wire and motor are saved from possible harm. As the safety valve in a locomotive engine allows the escape of steam when the pressure is too strong for safety or for the ordinary operation of the engine, so in electric cars the fuse is used to prevent the electrical mechanism from injury which might otherwise arise from the variations in the electrical current, which are practically unavoidable in the operation of the trolley cars. A fuse of the character above described is in general use upon cars run by electrical power. It is a safety device, and the evi dence in this case shows that, in view of the enough for her "to see it plainly come in the rapid action of electricity, the practical diffi- | car and flash right over" her mother. "The culty of controlling it at all times, the ina- | flame only partly enveloped" the person of bility of the motorman to ascertain the amount of power upon the wires or on the motors, the variable weight of the load to be carried, the reasonably necessary conditions of the traffic as to weight of machinery and cost of transportation, it is a proper device. It is intended to prevent harm to the machinery which otherwise might result from the practically unavoidable fluctuations of the power. The fuse is expected to burn out when, for any cause, the electrical current exceeds its carrying capacity; and the evidence of the experts in this case shows that in the ordinary operation of cars prop-neath, I don't know where. I was too far erly wired and equipped such an event is liable often to happen without negligence upon the part of anyone. When, therefore, a fuse burns out, it cannot be said that the connection between the occurrence and negligence is such as, in the absence of other evidence, to justify the conclusion that the result was due to negligence. As well might it be said that the escape of steam from the safety valve of a locomotive engine momentarily stopping at a station is evidence of negligence. The ordinary burning out of a fuse, therefore, is not prima facie evidence of negligence; and, if there had been nothing else in this case, the defendant would have been entitled to a verdict. her mother. "I should say it came over half of her face and body." Again, she says: "As the car started up the hill, there was this flash and flame. I saw this flash and flame come up around or near my mother." Henry O. Rideout, a witness called by the plaintiff, testified that at the time of the accident he was driving a two-seated carryall, and that he "saw a flame and smoke come out of the car ahead." He continued: "It might have been a flame of three or four seconds duration. It came up over the side of the car. Seemed to come from under away to tell. . . . I was probably 100 yards behind the car at the time. I was on the same side of the care that the flame I noticed the flame more than was. The car I did the smoke. I can't say from where I was, whether the flame went inside or within the car." Henry A. Rideout, another witness called by the plaintiff, testified that he was the father of the preceding witness, and at the time of the accident was driving in a team ahead of his son; and continued: "I saw a flash of light. was ahead of me. I was driving towards it, and was about the length of this room from it. I simply saw a flash of light, and then I had to attend to my horse. . . It But the jury may properly have found was quite a flash of light come out near the that there was something else in this case. front end of the car, I thought. My horse The expert evidence on both sides showed saw it, and, of course, shied, and I had to that the report, flash, and vapor-like puff pay more attention to the horse." "I don't attendant upon the burning out of a fuse recollect seeing any smoke." As to the witlike this when in proper condition are in- nesses called by the defendant, one Thompson stantaneous and harmless, and no physical testified that he was sitting directly oppoinjury, either by burning or by an electrical site the female plaintiff; and continued: shock, could be expected to result therefrom. "As the car was going, the fuse blew out. The evidence for the plaintiff tended, how- . . . There was a kind of a puff, and ever, to show something more than a mere there was some smoke kind of come into instantaneous, harmless flash. Upon this the car. Looked to me like smoke. EveryMrs. Cassady testified as follows: "I was body jumped. I jumped. There was this sitting on the car, and all at once a large smoke, and, I suppose, flame, together; but flame of fire, or a blaze, came all over me, I didn't notice much flame." On cross-exand I sprang off my seat, and started to go amination he said: "My clothing was not out of the car on the other side of the car, burned, and I never told anybody that it and a lady prevented me, and pushed me was. It might have been scorched. I smelled back, and that's the last I remember until the scorch of it." One Hunt, who was seated about three weeks afterwards, when I found by the side of the preceding witness, did not myself in bed." Her daughter, who was notice any smoke, vapor, or flame. The conseated a few seats in the rear of the one ductor of the car testified that at the time upon which her mother sat, testified that she he was standing on the running board on "saw a flash of fire come into the car right the right-hand side of the car, at about the over my mother, on the left-hand side; and fifth seat from the front, collecting fares; she sprang away from it. The heard a slight noise; did not turn around instantly, but soon turned, and saw no flame, but only "a slight vapor." One McPhee testified that he was about 400 or 500 feet behind the car at the time the fuse burned flame seemed to come up and over her, to come from under the seat. The duration of the flame was a few seconds." She could not tell how long it lasted, but it was long out. The first thing which attracted his at- | While, therefore, the mere burning out of a tention was the stopping of the car, and he saw no flash or flame. So much as to the testimony of the witnesses as to what they saw at the time. fuse properly located and in proper condition does not of itself import negligence on the part of the defendant, still, if the fuse be so located as, by its burning out, to injure a passenger, such a location may be inconsistent with the degree of care which a common carrier owes to its passengers. It would be something like arranging the safety valve of a locomotive engine so that the escaping There was evidence also tending to show that the flame existed long enough to burn. The jury may have believed that holes were made by the flame in the veil worn by Mrs. Cassady at the time of the accident. The daughter testified that she went to her moth-steam might reach a passenger in his er while in the car immediately after the accident, and that she then noticed that little red blotches were breaking out all over her mother's face; that, while bathing her mother's face a few hours afterwards at home, she noticed a "fine red mark about an inch or an inch and a half long," near her mother's left eye, and that her eyebrows appeared as if they had been "scorched or burned off," and that there was a very slight appearance of scorching of hair elsewhere near the face. Margaret Pierce, called by the plaintiff, testified to the existence of "red marks or spots" on the left side of the eye, and just above the eye, and to the scorched appear ance of the eyebrows and hair. The evidence as to these spots and marks was confirmed by several other witnesses. The plaintiff's contended that these holes in the veil, these spots and marks upon the face, and this scorching of the eyebrows and hair were caused by the flame. It is true that the expert testimony for the defense tended to show that there could have been no such flame, and hence that there could have been no such burning; but an irreconcilable conflict between what eyewitnesses say they saw and what expert witnesses say could not have happened is not unusual in the trial of causes, and within reasonable limits the jury may decide upon which they will rely. The jury, upon the evidence, may have found that the flame in this case was not the instantaneous and harmless flame which results from the burning out of a fuse when in proper condition; that the burning of this fuse was attended with unusual results, which would not have occurred if the fuse had been in proper condition; and that the most reasonable conclusion was that, if prop-court to the precise phase of the testimony er care had been exercised, there would have been no such flame. We cannot say that such a conclusion was not warranted by the evidence. seat. Upon the whole, we think that the plaintiff had a right to go to the jury on the question of the negligence of the defendant. It is very strongly urged by the defendant that in a case like this the doctrine of res ipsa loquitur does not apply, and in its sixteenth request it asked for an instruction to that effect. The court instructed the jury that the mere fact that the accident occurred is not in and of itself, as matter of law, prima facie evidence of negligence, and continued as follows: "That is, you cannot assume, just because an explosion may have occurred, in connection with the testimony in this case and the procedure in this case, that that is of itself negligence as matter of law. I cannot instruct you, as matter of law, that you are to find that prima facie evidence of negligence. But it is some evidence of negligence. It is for you to consider that as evidence tending to show negligence, but it is a question of fact for you to decide how far that shows negligence." There was no error in refusing to give the ruling requested. There was evidence, as above stated, which would warrant the conclusion that the intensity and duration of the flame produced by this explosion was greatly in excess of what could have been the result if the fuse had been in proper condition, and that this imperfect condition of the fuse could have been discovered by the use of reasonable care. Such being the case, the defendant was not entitled to the ruling requested. And the jury were properly instructed that the matter was before them to decide how far negligence could be inferred from the accident itself. If the defendant desired to call the attention of the where the principle would not apply, it should have done so more distinctly. The defendant also contends that, even if originally the doctrine would have been apMoreover, there is another feature in this plicable, the plaintiff had lost or waived her case of some importance. This was an open rights under that doctrine, because, instead car, and this fuse box was placed directly of resting her case solely upon it, she underunder a seat intended for passengers, so that took to go further, and show particularly if, for any reason, there should be a harm- the cause of the accident. This position is ful flame resulting from the burning out of not tenable. It is true that, where the eva fuse, it might be reasonably apprehended idence shows the precise cause of the accithat it would reach and injure a passenger. 'dent, as in Winship v. New York, N. H. & H. R. Co. 170 Mass. 464, 49 N. E. 647, and Buckland v. New York, N. H. & H. R. Co. 181 Mass. 3, 62 N. E. 955, and similar cases, there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it. The defendant strenuously contends that there was no evidence of physical injury, ei ther by the flame or by electricity, and that the sufferings of the plaintiff were due simply to fright. It would not be profitable to recite further in detail the evidence bearing upon this question. The charge to the jury was sufficiently full and clear upon this point and while a decision for the defendant might reasonably have been expected, still we cannot say that the jury could not find upon the evidence that the plaintiff was physically injured by the flame or electricity, or both combined. It was within the discretion of the judge to allow the question to be put to Morse, the expert, concerning the possibility of an electric shock. No error appears in the manner in which the judge dealt with the requests of the defendant. Exceptions overruled. KENTUCKY COURT OF APPEALS. John HUNDLEY, Appt., v. LOUISVILLE & NASHVILLE RAILROAD COMPANY. (105 Ky. 162.) 1. The novelty of a complaint is no objection to the action if it is made to appear that an injury has been inflicted of which the law is cognizable. 2. An action lies for every injury, suffered by reason of a violent or malicious act, to a man's occupation, profession, or way of getting a livelihood. 3. The right of railroad companies to discharge employees does not imply the right to be guilty of a violent or malicious act which results in injury to the discharged employee's calling. 4. A custom of railroads to keep a rec ord of the causes of the discharge of employees, and to decline to employ those who are discharged for certain causes, makes it a part of the contract of employment that no false entry as to the cause of such discharge shall be made, or communicated, if made, to any other railroad company. 5. Averments that plaintiff has been deprived, by blacklisting, of the right to engage in railroad employment, and that the wrong has made it impossible for him ever to get such employment, are merc conclusions, and insufficient to state a cause of action, without averring that he has sought employment and been refused by reason of the wrong. 6. An agreement between railroad companies not to employ persons discharged by the respective companies gives employees no right of action unless carried out. (December 13, 1898.) ployees and mutually agreeing to refuse employment to all such persons. Sometimes, however, only the names of men who have left on a strike, or are members of a certain labor union, are exchanged; and in other cases there is, perhaps, no actual agreement to refuse employment, but the combination is merely for the exchange of information; while in still other cases there is no combination of various corporations, but the lists are distributed to all of the many employing agents of a great railway or other corporation, and, when its lines or business enterprises extend over a large tract of the country under various divisions and names, the result is practically the same to the employee as though a combination of various corporations existed. Thus, it will be seen that the term cannot be strictly defined, and this is recognized by the courts; as, for instance, it is said in State ex rel. Scheffer v. |