(dissenting) — The proceedings and judgment herein do not conform to the Federal law under which this action is brought.
The Federal Employers’ Liability Act of 1908 “declares two distinct and independent liabilities,” and consequently two separate rights of action for “damages to any person suffering injury while he is employed by” a railroad common carrier engaged in interstate commerce “resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier,” etc. One liability is to the injured employee with a right of action to recover “such damages as would compensate him for his expense, loss of time, suffering and diminished earning power.” Under the original act of 1908, this right of action given to an injured employee was extinguished with the employee’s death. The other liability is that in case of the death of the employee as a proximate result of a negligent injury to give “a right of ac*533tion to certain relatives dependent upon an employee wrongfully injured, for the loss and damage resulting to them financially by reason of the wrongful death.” This latter cause of action “is independent of any cause of action which the decedent had, and includes no damages he might have recovered for his injury if he had survived.” Michigan Central Ry. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. Rep. 192; American R. R. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. Rep. 224.
By an amendment of April 5, 1910, another section was added to the act of 1908, which provides “That any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then to such employee’s parents; and, if none, then to the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.” This amendment makes the right of action given to an injured employee survive to his personal representative, and in effect makes the personal representative of the decedent the proper plaintiff and the same classes of persons the beneficiaries in either right of action given by the act of 1908, when the injured employee dies before a recovery is obtained; but the measure of recovery is materially different in the two actions. The damages claimed in an action by the personal representative of a deceased employee, whether under the one or the other of the stated distinct liabilities should be duly alleged, and should be proven substantially as alleged.
’ The death in this case is alleged to have been immediate upon the injury, and the declaration does not claim damages for injuries sustained by the decedent before his death, but alleges that “by reason of the death of the” *534decedent, the administrator “has sustained damages for which he here sues for the benefit of the parents of the” decedent. This clearly indicates that the damages claimed for the stated beneficiaries are those “resulting to them financially by reason of the wrongful death;” not damages that could have been recovered by the decedent but for his death. See Michigan Cent. R. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. Rep. 192; Tiffany, Death by Wrongful Act (2nd ed.) Sec. 74; Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. Rep. 960; Illinois Cent. R. Co. v. Pendergrass, 69 Miss. 425, 12 South. Rep. 954; McVey v. Illinois Cent. R. Co. 73 Miss. 487, 19 South. Rep. 209; West v. Detroit United Ry. 159 Mich. 269; 123 N. W. 1101. The proofs and charges as to the damages are inapplicable to the cause of action stated. See G. C. & S. F. Ry. v. McGinniss, Admx., Sup. Ct. U. S., April 7, 1913, 228 U. S. 173, 33 Sup. Ct. Rep. 426; Thomas v. C. & N. W. Ry., 202 Fed. 766.
When the Federal Employers Liability Law was enacted by Congress, no rule of evidence was prescribed therein, and it must be assumed that the enactment contemplated the continuance of the common law rule of evidence in negligence cases which was at that time enforced by the Federal Supreme Court. The rule then in force was that where an employee is injured in the coitrse of his employment such injury carries with it no presumption of negligence on the part of the employer; and actionable negligence of the employer is an affirmative fact for the plaintiff to prove substantially as alleged.
In such a case it is not sufficient for the plaintiff to show that the employee may have been negligent; but there must be at least some substantial evidence either direct or circumstantial pointing to the fact that the employer was negligent and that such negligence was a *535proximate cause of the injury alleged. When the testimony is uncertain, and shows that the injury may have been caused by any one of several things, for some of which the employer is not responsible, the jury is not by law authorized to guess which of the several causes proximately resulted in the injury to the employee, and to find that the negligence of the employer was the real cause, when there is no substantial foundation in the testimony for that conclusion. See Patton v. Texas & P. Ry. Co., 179 U. S. 658; 21 Sup. Ct. Rep. 275.
Sections 3148, 3149 and 3150 of the General Statutes of Florida of 1906, were first enacted as one law in 1891, “defining the liabilities of railroad companies in certain cases.” Section 3148 provides that a railroad company shall be liable for any damage done to persons or property by the running of trains unless the company shall make it appear that its agents have exercised all ordinary and reasonable care and diligence. This section was intended to apply only to actions brought against railroad companies on liabilities defined by the statutes of this State. See Atlantic Coast Line R. Co. v. McCormick, 59 Fla. 121, 52 South. Rep. 712.
The Federal Employers’ Liability Act is quite different from the State enactments, and is intended to operate uniformly in all the States to the exclusion of local laws on subjects affecting the liability covered by the Federal law. To impose or to establish liability by means of a local statutory presumption of negligence is a species of substantive regulation that the legislature of the State has not attempted to project into actions for damages authorized solely by the Federal law enacted under the paramount and exclusive power of Congress to regulate interstate commerce.
Taylor, J., concurs.