The statement of facts as set out in the majority opinion is substantially correct, but, as I believe, too condensed to furnish a comprehensive picture of all the important facts and circumstances out of which defendant's negligence is said to have arisen.
Defendant offered no evidence on its own behalf, but rested on completion of the cross-examination of plaintiff's witnesses, and thereupon demurred to all of the evidence and moved for a peremptory instruction in proper form.
Defendant's train on which the deceased was employed as a brakeman arrived at the town of Allen about 6: 45 p. m. on March 20th. The first duty performed by the crew was to remove 27 cars from storage track No. 2 so that proper spotting of certain cars might be made. These 27 cars were pulled onto the main track, and one of them shunted south on said track a distance of 300 or 400 feet from the point where storage tracks joined the main line, where it was brought to a stop by decedent pursuant to his duties as brakeman. Thereupon another car was cut out and rolled onto track No. 2 and allowed to move off on its own momentum. The deceased, in the performance of his duties, was seen to cross from the main line to track No. 2, where he boarded the car last mentioned for the apparent purpose of bringing the same to a stop by means of the hand brakes, as was his duty. He was not seen again until after his injury.
Then the crew cut out another car and shunted it down the main line. Then nine cars were cut loose and shoved off on track No. 2. It was deceased's duty to board all these single cars and groups of cars and to bring them to a stop at some spot thought to him suitable under the circumstances. There is no evidence to indicate whether he ever boarded the second car on the main line or the nine cars on track No. 2.
It had grown dark in the meantime. The conductor discovered the first car on track No. 2 moving along unattended at a speed of 11 or 12 miles per hour. He climbed on and brought the same to a stop. He then walked north and met the nine cars moving along at about the same speed. They, too, were unattended. He boarded these cars and brought them to a stop against the first car with very little resulting noise. He then proceeded north again, and a few moments later, about 8 p. m., found decedent lying near the tracks fatally injured. In reply to a question, the injured man told the conductor that he had been knocked off the first car that came down track No. 2.
In the meantime other switching operations had taken place, but, according to the trainmen, all were performed in the usual and customary manner.
The witness Gill, who resided 300 or 400 feet from the tracks, said he had gone to bed that evening about 7:30, and that at some time thereafter prior to 8 p. m. he heard an unusual collision of cars in the yards immediately followed by the sound of a masculine voice moaning and hollering. He made no investigation.
Plaintiff's theory was that decedent was riding the first car on track No. 2 and was attempting to bring the same to a stop when the nine cars aforesaid were carelessly shoved off on track No. 2 with such force that they overhauled and collided with the first car with such violence as to cause decedent to be thrown beneath said car or in the path of the nine cars, resulting in his fatal injury.
Defendant's negligence hangs entirely on the statement of the injured man to the conductor, which I agree may be considered as part of the res gestae, and the testimony of Gill, above.
The only evidence favorable to plaintiff was that some time between 7 and 8 o'clock P. M. the decedent was knocked off of the first car to come down track No. 2; that during the latter half of that hour there was the sound of an unusual collision between cars in the yards followed by the voice of a man as if in pain. *Page 680
On the other hand, there were numerous switching operations and the coupling of cars with the usual and customary noises ordinarily attendant upon such operations.
In order to charge defendant with actionable negligence, it must first be found that the unusual collision was a result of a negligent act of the other employees; that such collision was between, the nine cars and the car on which the deceased was riding; that said collision knocked him off the car, and was the proximate cause of the injuries.
In arriving at a verdict for plaintiff the jury was compelled to infer that the unusual collision heard by Gill was the result of a negligent act on the part of other employees; to infer that said collision was between the nine cars and the car on which deceased was riding; to infer that such collision knocked deceased off said car.
Assuming that the jury might properly infer that the collision was the result of a negligent act, there is no circumstance in evidence to support an inference that the collision heard was between the nine cars and the single car, or, in fact, that those cars ever collided at all. This is the fatal gap in plaintiff's evidence looking toward causal connection between the alleged negligent act and the injury.
This case does not present the question of necessity of choosing between probable causes. The evidence pointed to no circumstance that would indicate any particular cause. Deceased got knocked off the car, but, as to the cause, the evidence is entirely silent. The case would seem not to fall within the rules stated in the first three paragraphs of the syllabus of the majority opinion.
In my opinion the trial court should have directed a verdict for defendant. I therefore respectfully dissent.