(dissenting). I dissent. In my opinion the doctrine of res ipsa loquitur has no application in this case. This doctrine is not one of substantive law, but is a rule of evidence. In all cases the party who seeks to recover damages for injuries occasioned by the negligence of another must show that the injury is more naturally to be attributed to the negligence of the defendant than to any other cause. The doctrine, res ipsa loquitur, does not dispense with this rule. It merely determines the mode of proving, or what shall constitute prima facie evidence of, negligence. The phrase, res ipsa loquitur, means literally that “the thing itself speaks,” or “the thing speaks for itself.” As applied by the courts, the doctrine designated by the phrase means that the very occurrence of the accident, under the circumstances shown in proving the accident itself, imports negligence. In other words that, from the facts and circumstances proved with respect to the occurrence of the accident, reasonable men may infer that it was occasioned by reason of the negligence of the party sought to be charged.
“The ‘res’ in the maxim, Res ipsa loquitur, is not simply an accident resulting in injury, but the accident and the surrounding circumstances, and the doctrine does not permit a recovery without some proof of negligence, but, if the occurrence was such that it could not have happened without negligence according to the ordinary experience of mankind, the doctrine is applied, though the precise omission or act of negligence is not specified.” Robinson v. Consolidated Gas Co. 194 N. Y. 37, 28 L.R.A.(N.S.) 586, 86 N. E. 806.
“The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer. Cases not coming under one or both of these heads must be those in which the circumstances are free from dispute, and show not only that they were under the exclusive control of the defendant, but that in the ordinary course of experience no such result follows as that complained of. It is sometimes said that the mere happening of an accident in this class of cases raises a presumption of negligence, but *158this is hardly accurate. Negligence is never presumed. If it were, it would be the duty of the court, in the absence of exculpatory evidence by the defendant, to direct a verdict for the plaintiff, whereas in these cases the question is for the jury. The accurate statement of the law is not that negligence is presumed, but that the circumstances amount to evidence from which it may be inferred by the jury.” Minneapolis General Electric Co. v. Cronon, 20 L.R.A. (N.S.) 816, 92 C. C. A. 345, 166 Fed. 659.
The doctrine was defined by Erie, Ch. T., in giving his judgment in a noted case, thus: “Where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” Scott v. London & St. K. Docks Co. 3 Hurlst & C. 596, 159 Eng. Reprint, 665.
“This definition,” says Thompson (1 Thomp. Neg. § 15), “has met with such' general approval at the hands of judges in subsequent cases that it has become, so to speak, a legal classic. The meaning is not that the mere happening of an accidental injury is, of itself and in the abstract, presumptive evidence of negligence; it is that, in the numerous cases which fall within the above definition of the principle, the fact of the accident, when viewed in connection with the circumstances under which it took place, tends to demonstrate negligence, subject to explanation.”
The maxim sprang into existence by reason of the vast increase in modern times of the use of powerful machinery, harmless in normal operation, but capable of serious human injury if not constructed or managed in a certain mode. Wyldes v. Patterson, 31 N. D. 282, 316, 153 N. W. 630. The particular force and' justice of the doctrine, regarded as a rule throwing upon the party charged with negligence the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him, but inaccessible to the injured person. Wigmore, Ev. § 2509. Professor Wigmore, in discussing the doctrine and its application, advances the following considerations that ought to limit its application: (1) The apparatus must be such that in ordinary in*159stances no injury is to be expected, unless from a careless construction,, inspection, or user; (2) both inspection and user must have been at the-time of the injury in the control of the party charged; (3) the injurious occurrence or condition must have happened irrespective of any voluntary action at the time of the party injured. Wigmore, Ev. § 2509.
The application of the doctrine depends upon the facts and circumstances of each individual ease. It cannot be invoked between employer and employee, unless it appears from the circumstances attending the-accident that except for some negligence of the master, either of omission or commission, the accident could not have happened. Feingold v. Ocean S. S. Co. 61 Misc. 638, 113 N. Y. Supp. 1020. See also Cederberg v. Minnesota St. P. & S. Ste. M. R. Co. 101 Minn. 100, 111 N. W. 955.
In applying the doctrine against an electric light company, when a person, was injured while adjusting an electric light in his residence,, by an electric shock transmitted from outside wires entirely without fault on-his part and in a manner which would not have happened if the wires had been in proper condition, the United States Supreme Court stated the doctrine of res ipsa loquitur thus: “When a thing which causes injury, without fault of the injured person, is shown to be under-the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s want of care.” San Juan Light & Transit Co. v. Requena, 224 U. S. 89, 56 L. ed. 680, 32 Sup. Ct. Rep. 399.
Bearing these principles in mind, it is difficult to understand how the doctrine can be said to have any application in the case at bar. It is not contended that the electric light involved in this case was either installed or operated by the defendant. On the contrary, it appears from the record that it was connected with and lighted by current furnished by the Electric Light Company which operates the lighting system of the city of Minot. It was an ordinary electric light, — such as was installed in the various homes and business places in the city of Minot, and for that matter generally throughout the state and country. The defendants maintain a small ice cream factory. They *160had some potatoes in the basement. The plaintiff was engaged to sort these potatoes. Some conversation was had with respect to the light. He was either directed not to touch it, or else to be careful not to break it. There is no contention that he was ordered to move it. He endeavored to do so, however, and it was while attempting to do so that he was injured.
The defendants were bound to exercise due care in protecting their employee from injury. What constitutes due care is to be “estimated on a consideration of the facts of each particular case.” It is such care as reasonable and prudent meu would use under the same or similar circumstances. Conversely, the defendants, as masters, were not required to exorcise any higher standard of diligence or skill than that which a reasonably prudent and careful man may be supposed to exercise under the circumstances. Labatt, Mast. & S. §§ 906, 907.
The work in which plaintiff was engaged was certainly not peculiarly dangerous. It is such work as might be performed in the cellar or basement of almost any farmhouse and in many, if not most, homes in the cities of this state. If it is true that the very happening of the accident in the case at bar imports negligence, then it is equally true that the happening of a similar accident in any home imports negligence. Either there is a duty incumbent to have electric lights tested, or there is not. Will it be contended that this is a practice or custom followed by persons of ordinary prudence and care, or even by persons of extraordinary prudence and care? I think not. I am firmly of the opinion that the doctrine of res ipsa loquitur has no proper application in this case.