Pearson v. Northern Pacific Railway Co.

Fullerton, J.

(dissenting) — The opinion of the majority proceeds upon the assumption that it was incumbent on the respondent not only to prove that something struck the car upon which he was working with sufficient force to throw him therefrom to the ground, but the particular something that struck the car. But such is not the rule. This burden was not upon the respondent. The appellant, as the respondent’s employer, was ’ obligated to furnish him with a reasonably safe place in which to work, and to keep the place reasonably safe as long as the work continued. The respondent, therefore, made a prima facie case when he showed a violation of this obligation — when he showed that, while he was working on the top of the car in the manner directed by the appellant, something struck it, caused by no fault of his own, sufficiently hard to throw him therefrom to the ground. The burden of accounting for the accident is on the appellant; it is obligated to show that the striking of the car was caused by some act for which it is not responsible, if it is to be relieved from liability therefor; this is the *13necessary corollary of the rule which required it to keep the place of work furnished by it to the respondent reasonably safe. I think, therefore, that this court errs in holding that the judgment is not sustained by the evidence.