McCarty, District Judge,
after stating the facts, delivered the opinion of the court.
Plaintiffs contend that it was the duty of the defendant to furnish its employés with printed rules for their government, guidance and safety, and that its failure to do so was negligence.
There are certain kinds of employment where, on account of their nature, it becomes necessary, and is the duty of the master to promulgate and publish rules and regulations for the guidance and government and safety of its em-ployés. Especially is this true where a large number of persons are at work and the danger or safety of the employment depends largely upon all the employés performing their duties promptly at stated times and in a given manner. But we do not understand the rules to apply to cases such as the one in question where the very nature of the employment makes it dangerous, and the dangers incident thereto, and growing out of it are of common knowledge and are fully known to and understood by the servant, and the safety of others cannot be imperiled in any way by any act or omission of his in the performance [500]*500of bis duties, and bis safety depends wholly upon the de ■ gree of skill, care and caution used by himself, and not upon that of his fellow servants. In this case the decedent, as shown by the evidence, thoroughly understood and appreciated the dangers incident and growing out of the employment. His work kept him in another part of the plant separate and apart from his fellow servants who worked on the same shift as himself, and whose duties were separate and distinct from his. And it is apparent, as shown by the record, his safety did not in anywise depend on the knowledge and skill of his co-employés, nor on the degree of care and caution used by them. In fact it is not contended that the accident was due wholly or in part to any act or omission of his fellow servants, therefore, the defendant cannot be held liable in this case on account of its failure to furnish its employés with printed rules, as the record shows conclusively that such failure did not in any way contribute to the accident. Atchinson T. & S. F. Ry. Co. v. Carruthers, (Kan.) 43 Pac. Rep. 230.
It is further contended that defendant’s failure to guard, protect and insulate the dynamos was negligence.
The machinery and appliances used by defendant in its electric light plant before and at the time of the accident were of the kind commonly and ordinarily used in other electric light plants, and the manner and methods of running and operating them were the same. The rule has become elementary that where a master has furnished the servant with machinery and appliances reasonably safe and suitable and such as are in general use for carrying on the same kind of business as that in which the master is engaged, and the servant is injured without any fault of the master, the master cannot be held liable because he failed to make use of some attachment or special device that might have rendered the operating of the machinery [501]*501less dangerous and the accident thereby might have been avoided. In the case of Titus v. Railway Co.; 136 Pa. St. 618, which is a well considered case, the court said:. “To show that a practice is dangerous does not prove it to be negligent. Some employments are essentially hazardous, and it by no means follows that an employer is liable because a particular accident might have been prevented by some special device or precaution not in common use. All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for in regard to the style of the implement, or nature of the mode of performance of any work, reasonable safety means according to the usages, habits and ordinary risks of the business.
Absolute safety is unattainable and employers are not insurers. They are liable for the consequences, not of danger, .but of negligence; and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. No man is held to a higher degree of skill than the fair average of his trade or profession, and the standard of due care is the conduct of the average prudent man. The test of negligence as to employers is the same; and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual way commonly adopted by those in the same business, is a negligent way, for which ^ liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control of the business of a community.” Bailey Mast. Liab. p. 145; Miss. River Logging Co. v. Scheider, 20 C. C. A. 390 [502]*502and cases cited; E. S. Higgins Carpet Co. v. O'Keefe, 25 C. C. A. 220; Gilbert v. Guild, 144 Mass. 601; Sehrœder v. Car Co. 56 Mich. 132; Nutt v. Southern Pac. Ry. Co. 35 Pac. 653; Washington & G. R. Co. v. McDade, 135 U. S. 554 and cases cited.
Further citation of authorities in support of this doctrine is unnecessary.
The only remaining question for our consideration is, was there any evidence that tended to prove negligence on the part of the defendant, by reason of the clutch or lever having been left near a live dynamo ? Just how the decedent came in contact with the dynamo and caused the fatal current to pass through him is a matter of speculation and conjecture. Counsel for plaintiffs insist that there was some evidence tending to show that decedent came in contact with the live dynamo with his hands and at- the same time came in contact with the clutch or lever with his left leg and thereby grounded the current with fatal results. And that this question, together with the other questions we have considered, should have been submitted to the jury. We have made a critical examination of the record and fail to find any evidence whatever that supports this theory any more than it does the theory contended for by defendant, viz: that decedent met his death by coming in contact with the upper magnet with his hands, and at the same time coming in contact with the armature, brushes, or lower magnet with his leg. There is no evidence that tends to show the position of the clutch or lever before or at the time of the accident; for aught appears in the record it might have been out of reach of the live dynamo. To entitle the plaintiffs to recover it was incumbent upon them to establish the negligence of defendant by some evidence, and that such negligence was either the cause of, or contributed to the accident. [503]*503Negligence cannot be presumed, nor the question thereof left to conjecture. In the case of Sorenson v. Monasha Paper & Pulp Co., 56 Wis. 338, the learned court tersely, and, we think, correctly, stated the rule as follows:
“Judicial determination must rest upon facts, and legal-liability must be determined by the law in application to the facts. This rule will not exclude circumstantial evidence, for such evidence is often the strongest; but such evidence, after all, must establish facts.
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McCarty, District Judge,
after stating the facts, delivered the opinion of the court.
Plaintiffs contend that it was the duty of the defendant to furnish its employés with printed rules for their government, guidance and safety, and that its failure to do so was negligence.
There are certain kinds of employment where, on account of their nature, it becomes necessary, and is the duty of the master to promulgate and publish rules and regulations for the guidance and government and safety of its em-ployés. Especially is this true where a large number of persons are at work and the danger or safety of the employment depends largely upon all the employés performing their duties promptly at stated times and in a given manner. But we do not understand the rules to apply to cases such as the one in question where the very nature of the employment makes it dangerous, and the dangers incident thereto, and growing out of it are of common knowledge and are fully known to and understood by the servant, and the safety of others cannot be imperiled in any way by any act or omission of his in the performance [500]*500of bis duties, and bis safety depends wholly upon the de ■ gree of skill, care and caution used by himself, and not upon that of his fellow servants. In this case the decedent, as shown by the evidence, thoroughly understood and appreciated the dangers incident and growing out of the employment. His work kept him in another part of the plant separate and apart from his fellow servants who worked on the same shift as himself, and whose duties were separate and distinct from his. And it is apparent, as shown by the record, his safety did not in anywise depend on the knowledge and skill of his co-employés, nor on the degree of care and caution used by them. In fact it is not contended that the accident was due wholly or in part to any act or omission of his fellow servants, therefore, the defendant cannot be held liable in this case on account of its failure to furnish its employés with printed rules, as the record shows conclusively that such failure did not in any way contribute to the accident. Atchinson T. & S. F. Ry. Co. v. Carruthers, (Kan.) 43 Pac. Rep. 230.
It is further contended that defendant’s failure to guard, protect and insulate the dynamos was negligence.
The machinery and appliances used by defendant in its electric light plant before and at the time of the accident were of the kind commonly and ordinarily used in other electric light plants, and the manner and methods of running and operating them were the same. The rule has become elementary that where a master has furnished the servant with machinery and appliances reasonably safe and suitable and such as are in general use for carrying on the same kind of business as that in which the master is engaged, and the servant is injured without any fault of the master, the master cannot be held liable because he failed to make use of some attachment or special device that might have rendered the operating of the machinery [501]*501less dangerous and the accident thereby might have been avoided. In the case of Titus v. Railway Co.; 136 Pa. St. 618, which is a well considered case, the court said:. “To show that a practice is dangerous does not prove it to be negligent. Some employments are essentially hazardous, and it by no means follows that an employer is liable because a particular accident might have been prevented by some special device or precaution not in common use. All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for in regard to the style of the implement, or nature of the mode of performance of any work, reasonable safety means according to the usages, habits and ordinary risks of the business.
Absolute safety is unattainable and employers are not insurers. They are liable for the consequences, not of danger, .but of negligence; and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. No man is held to a higher degree of skill than the fair average of his trade or profession, and the standard of due care is the conduct of the average prudent man. The test of negligence as to employers is the same; and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual way commonly adopted by those in the same business, is a negligent way, for which ^ liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control of the business of a community.” Bailey Mast. Liab. p. 145; Miss. River Logging Co. v. Scheider, 20 C. C. A. 390 [502]*502and cases cited; E. S. Higgins Carpet Co. v. O'Keefe, 25 C. C. A. 220; Gilbert v. Guild, 144 Mass. 601; Sehrœder v. Car Co. 56 Mich. 132; Nutt v. Southern Pac. Ry. Co. 35 Pac. 653; Washington & G. R. Co. v. McDade, 135 U. S. 554 and cases cited.
Further citation of authorities in support of this doctrine is unnecessary.
The only remaining question for our consideration is, was there any evidence that tended to prove negligence on the part of the defendant, by reason of the clutch or lever having been left near a live dynamo ? Just how the decedent came in contact with the dynamo and caused the fatal current to pass through him is a matter of speculation and conjecture. Counsel for plaintiffs insist that there was some evidence tending to show that decedent came in contact with the live dynamo with his hands and at- the same time came in contact with the clutch or lever with his left leg and thereby grounded the current with fatal results. And that this question, together with the other questions we have considered, should have been submitted to the jury. We have made a critical examination of the record and fail to find any evidence whatever that supports this theory any more than it does the theory contended for by defendant, viz: that decedent met his death by coming in contact with the upper magnet with his hands, and at the same time coming in contact with the armature, brushes, or lower magnet with his leg. There is no evidence that tends to show the position of the clutch or lever before or at the time of the accident; for aught appears in the record it might have been out of reach of the live dynamo. To entitle the plaintiffs to recover it was incumbent upon them to establish the negligence of defendant by some evidence, and that such negligence was either the cause of, or contributed to the accident. [503]*503Negligence cannot be presumed, nor the question thereof left to conjecture. In the case of Sorenson v. Monasha Paper & Pulp Co., 56 Wis. 338, the learned court tersely, and, we think, correctly, stated the rule as follows:
“Judicial determination must rest upon facts, and legal-liability must be determined by the law in application to the facts. This rule will not exclude circumstantial evidence, for such evidence is often the strongest; but such evidence, after all, must establish facts. When liability depends upon carelessness or fault of a person or his agents, the right of recovery depends upon the same being clearly shown by competent evidence; and it is incumbent upon .such a plaintiff to furnish such evidence to show how and why the accident occurred, some fact or facts by which it can be determined by the jury,' and not left entirely to conjecture, guess or random judgment, upon mere supposition, without a single fact shown.” Sherman v. Menominee Piver Lumber Co., 77 Wis. 22; Trapnell v. City of Red Oak Junction, 76 Iowa, 744.
There are other reasons why a recovery cannot be had in this case. The decedent’s duties did not require him to pass between the lever mentioned and the live dynamo, nor was it necessary for him to do so. He could have oiled and cared for the dynamo on the opposite side from the lever and thereby avoided all danger of coming in contact with both at the same time. When there are two or more methods or ways by which a servant may perform his duties and he voluntarily chooses the most hazardous, knowing it to be such, he does so at his own risk. Bailey Mast. Liab. p. 169; St. Louis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555; Same v. Burk, 12 Ill. App. 369; Cook v. Mining Co., 12 Utah, 51; Colo. Coal & Iron Co. v. Carpita, 40 Pac. Rep. 248; Richardson v. Carbon Hill Coal Co., 32 Pac. Rep. 1012; Lewis v. Simpson, 29 Pac. Rep. 207.
[504]*504For two weeks after this lever and tbe machine to which it was attached were left near the dynamo, the decedent fully realizing the increased dangers and risks, if any, caused thereby, continued to work there as usual without complaint or objection. By thus continuing in the employment he assumed the increased risks, if any, that were created by the position of this lever. Southern Pac. Co. v. Seley, 152 U. S. 145 and cases cited; McCharles v. Mining Co., 10 Utah, 470; American Dredge Co. v. Wells, 28 C. C. A. 441.
.We are of the opinion that the non-suit was properly granted. The judgment is affirmed with costs.
Bartch, J. and Baskin, J. concur.