My dissent is based upon what I believe to be a misconception by the majority of the effect of the evidence when contradictory statements of the plaintiff are considered and when improbabilities amounting to fantastic absurdities are weighed against the background.
That plaintiff was injured to some extent there can be no doubt. That he was employed by defendant when the accident occurred is admitted. That he was found in an unconscious condition near a fire on the right-of-way by the crew of a north-bound freight train *Page 583 is testified to by operatives who swore that the train was not flagged.
How the injury occurred is told only by the plaintiff who first acknowledged that he did not know. He subsequently gave a thirty-thousand-dollar account of having looked up into the blackness of night in time to see a piece of coal or slate fall from the tender of a freight train he claims to have flagged. A preponderance of the evidence is to the effect that no such train was being operated.
In actions at law in this court substantial evidence of an essential fact is required. Trial courts are concerned with a preponderance. But substantial evidence should not lose its significance and become confused with shadows of substance — shadows which in the instant case do not rise to the dignity of scintilla.
It is obvious that plaintiff's identification of the falling object was an incident of trial necessity and that the revised version was an inspiration seized upon after there was realization that the first explanation was insufficient under the Federal Employer's Liability Act. Resourcefulness seems to have supplied the element of liability in a chain of contention which to me appears too weak to stand judicial test.
Mr. Justice HOLT concurs in this opinion.