#### Oliver C. Allan, Plaintiff in Error, v. Donk Bros. Coal & Coke Company, Defendant in Error.

Master and servant—application of rule res ipsa loquitur. Held, that while this rule did not apply in this case, it might apply in some cases arising between master and servant.

Action in case for personal injuries. Error to the Circuit Court of Madison county; the Hon. Charles T. Moore, Judge, presiding.

Heard in this court at the August term, 1908.

Affirmed.

Opinion filed March 4, 1909.

C. H. Burton, for plaintiff in error; Joseph Block, of counsel.

Wise, McNulty & Keefe, for defendant in error.

Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Madison county, by plaintiff in error against defendant in error to recover for a personal injury. Trial by jury. At the close of plaintiff’s evidence the court directed the jury to find the defendant not guilty; the jury "returned a verdict as directed; and after overruling plaintiff’s motion for new trial, the court rendered judgment on the verdict.'

The substance of the theory upon which plaintiff in error’s case is based, is that he was in the service of defendant in error and was directed by one of its su*172perintendents to do certain machinist work at specified times each day, from day to day, until the job should be completed, and that upon the occasion of his injury, he had gone as usual to the performance of this work and while there engaged the defendant in error negligently caused a shaker screen to be moved without giving him any notice or warning, whereby he was injured.

The controlling question presented is, does this record disclose evidence tending to prove all that is required to warrant a recovery? We agree with the trial judge in his conclusion that it does not. We fail to find any evidence of negligence on the part of defendant in error.

Counsel for plaintiff in error contends that the rule res ipsa loquitur applies. We think not. While we are not willing to go to the full length contended for by counsel for defendant in error and hold that the rule res ipsa loquitur “has no application in any case, as between master and servant,” we do agree with them that it has no application in this ease.

We are of opinion that the trial judge did not err in directing a verdict in favor of defendant in error.

The judgment of the Circuit Court is affirmed.

Affirmed.