■ I concur in the ruling announced in the first headnote and first division of the opinion, but dissent from the ruling expressed in the second headnote and second division of the opinion, upon the reasoning and authorities following. One *84of the grounds of the motion for new trial was that the verdict was contrary to evidence. Under the peculiar facts of the case it is important first to inquire upon whom the burden of proof rested, after proof of the injur]», to show that the defendant was negligent in the manner charged in the declaration. Under the ruling in Atlanta & Richmond Air-Line Ry. Co. v. Campbell, 56 Ga. 586, and cases therein cited, and many cases which followed, an employee of a railroad company may recover damages resulting from injuries received by the negligence of the master or by the negligence of a fellow-servant while engaged in the work of the master, provided the person injured is free from fault, and his dereliction of duty did not in any manner contribute to the cause of the injury. So also, where an employee of a railroad company sues the company for damages to his person or property, if on the trial it should be affirmatively shown that the damage was done by the running of the locomotives, or cars, or other machinery of the company, or that the damage was done by any person in the employment and service of the company, and that there was no dereliction of duty by the injured employee which in any manner contributed to cause the injury, so that it could be said that the employee was free from fault, such affirmative proof of freedom from fault would place the employee upon an qqual footing with other persons similarly situated, who were not employees, and, taken in connection with affirmative proof that the injury was done by the running of locomotives, cars, or other machinery of the company, or by an employee of the company while engaged in the service for which he was employed, would raise a' presumption that the injury resulted from negligence chargeable to the company. Upon this general subject see the following cases: Campbell v. Atlanta R. Co., 53 Ga. 488; Atlanta R. Co. v. Campbell, 56 Ga. 586; Central R. Co. v. Kenney, 58 Ga. 485, 489; Central R. Co. v. Sears, 59 Ga. 437; Atlanta R. Co. v. Webb, 61 Ga. 586; Central R. Co. v. Freeman, 66 Ga. 174; Gassaway v. Ga. So. Ry. Co., 69 Ga. 347; Ga. R. Co. v. Bryans, 77 Ga. 429; Western R. Co. v. Vandiver, 85 Ga. 470 (11 S. E. 781); Johnson v. Richmond R. Co., 95 Ga. 685 (22 S. E. 694); Augusta R. Co. v. McDade, 105 Ga. 134 (5), 137-8 (31 S. E. 420); Western R. Co. v. Jackson, 113 Ga. 355 (38 S. E. 820). But while upon affirmative proof that the employee *85was free from fault, as expressed above, the employee would be upon an equal footing in regard to the law of presumption with persons similarly situated, other than employees, there is no reason or principle under which it could be said that he would stand upon a better footing. If the employee would not stand upon a better footing, it follows that, upon proof of freedom from fault by the employee, no presumption of negligence would arise against the company under circumstances where the presumption would not arise where the person injured was not an employee. With regard to suits by others than employees, the law which raises a presumption of negligence against railroad companies upon proof of the injury is found in the Civil Code, §2321, and the presumption there, referred to is now frequently called the “statutory presumption.” The code section just referred to provides as follows: “A railroad company shall be liable for any damage done to persons, stock, or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” To the extent that the section raises a presumption of negligence against the defendant in cases other than those of injuries to passengers, it is in .derogation of the common law and must be strictly construed. Atlanta Railway Co. v. Johnson, 120 Ga. 908, 912 (48 S. E. 389). Under this law the presumption of negligence charged in the petition will arise upon proof of injury done in either of two ways: (a) by the running of the locomotives, cars, or other machinery of the defendant company; (&) or by an employee of the defendant company while engaged in the service contemplated by his employment. No other conditions are named under which the statutory-presumption of negligence against the defendant will arise. An examination of all the cases (unless the cases of Central Railroad Co. v. Gleason & Harmon, 69 Ga. 200, 72 Ga. 742, hereinafter referred £o, held to the contrary) will fail to disclose one where, upon proof of the injurjq negligence has been presumed against the railroad company, unless the injury was caused in one of the two ways just mentioned. If this be kept in mind while reading *86the various cases on the subject, it will save confusion. In the case at bar it affirmatively appears that the injury was not done by any employee of the defendant company, and a presumption of negligence dependent, upon that source may be eliminated from further consideration. We need only inquire whether the injury was done by the running of the locomotives, cars, or other machinery of the defendant company. This court has not decided any case involving this question where the facts are exactly similar to those shown by the present record; but we may allude to' a few cases on the general subject. In the case of Ga. R. Co. v. Nelms, 83 Ga. 70 (9 S. E. 1049, 20 Am. St. R. 308), it was alleged, that the plaintiff was employed by the defendant to assist in changing the grade of its track, and that the defendant had furnished him and other employees with certain tools and implements with which to take up the iron rails and refasten them to the cross-ties; that hammers of certain weights, shapes, purity of steel, .and of the proper temper were furnished them in order that the work should be done with safety and dispatch; that petitioner was furnished with a hammer to drive spikes; that he believed he had been furnished with one of the proper temper, etc., and that knowing nothing to the contrary he entered upon such work under the direction and control of the company’s officers, and while so engaged in driving spikes he was injured by the breaking of the hammer *so furnished him, said breaking-causing pieces thereof to fly off with great force and violence, one of which struck the plaintiff and injured him. In discussing whether or not the statutory presumption of negligence provided for in the Civil Code, § 2321, arose against the defendant, the court, among other things, on page 74, said: “We do not think that a hammer thus used comes under the term ~ ‘machinery’ used in the above section. . . The plaintiff not being injured in any of the ways pointed out in the above section, either by the running of the cars or machinery, or by any other employee of the company, there was no presumption in his favor or against the railroad company, as set forth in the above section. This case, therefore, is not governed by that section, but falls under the general law of master and servant. Under that law, the burden was upon the plaintiff to show negligence on the part of the defendant in supplying him with a defective hammer.” In the *87case of Savannah Ry. Co. v. Flaherty, 110 Ga. 335 (35 S. E. 677), it was alleged that the defendant, for the purpose of rolling trucks across its passenger-depot in the city of Savannah, the floor -of which was elevated above the railway tracks, had constructed a crossing at each end of which was a ¿steep incline from the level of the floor to that of the tracks. A train for the reception of passengers was so placed in the depot that the steps of the ladies’ ear thereto attached were immediately over the incline at one end of this crossing. The sloping edge, which was slippery with grease or other substance, would not have been visible to a casual observer, even under favorable conditions, and, on the evening petitioner was injured, it was a dark and rainy afternoon, and the electric light's were lit in the city. The plaintiff purchased a ticket and undertook to enter the ladies’ car as a passenger. In the exercise of due diligence and being wholly unaware of the dangerous trap, her right foot encountered the unexpected slope at the moment she was raising her left foot to place it on the step of the car. Her right foot slipped from under her and she fell, -sustaining injuries. The company was alleged to have been negligent in stopping the car at the point indicated, without covering the gangway or edge of the platform. In discussing the question as to whether the provisions of Civil Code, § 2321, were applicable, after quoting that section, it was. saicl, commencing on page. 336: “The plaintiff certainly was not injured by the Gunning of, the ‘locomotives, or cars, or other machinery’ of the company. Everything it owned or possessed having any connection with her fall was at a dead standstill. Nothing was *running.’ Was the damage to her ‘done by any person in the employment and service’ of the defendant? We are prepared to say with the utmost confidence it was not. Granting that the incline was improperly constructed or kept, and that the placing of the steps of the car over the slope of the-incline was, relatively to those invited to board the train in this, position, a negligent act, it still can not be said that any particular employee of the company did any direct wrong to the plaintiff.
. . The language of the section under consideration is plain, and unambiguous, and it seems clear that, in order to render its. provisions applicable to a given case, it must affirmatively appear,, as the law itself declares, that the- injury complained of resulted *88either from ‘the running of the locomotives, or ears, or 'other machinery’ of the company, or from some .wrongful act of an employee which' itself was the immediate cause of the damage to the person injured. . . In Rome R. Co. v. Thompson, 101 Ga. 26 (28 S. E. 429), it appeared that ‘the plaintiff’s husband lost his life through a defect in a platform which had been erected as a part of a contrivance for weighing cars,’ and it was held that a charge to the effect that a -presumption of negligence arose against the defendant company was ‘entirely inapplicable to the facts.’ Counsel for the defendant in error cited numerous cases in which this court has held that the presumption of negligence arose against a railroad company. We have carefully examined all of them; and find that, in every instance, the injury resulted from the running of a locomotive, car, or train, or from some act of an employee, which directly and immediately caused the damage. The expression, ‘Where an injury is committed by a railroad, the presumption is alwaj'-s against the road,’ occurring in the third headnote to the case of Central Railroad Co. v. Brinson, 64 Ga. 475, and the remark of-Judge Crawford on page 478, that ‘Railroad companies are liable for injuries done by them to persons and to property, and whenever one has been shown to have been committed, the presumption of the law is against them,’ must be understood and interpreted with reference to the facts of that particular case, which was an action to recover damages for the careless running of a train, whereby the plaintiff lost his foot.” Among other cases in which it is held that the statutory presumption did not arise under the particular facts involved are the following: Atlantic & Birmingham R. Co. v. Reynolds, 117 Ga. 47 (43 S. E. 456); Atlanta R. Co. v. Johnson, 120 Ga. 912 (48 S. E. 389); Davis v. Ga. R. Co., 110 Ga. 305 (34 S. E. 1001). See also Talmadge v. Central Ry. Co., 125 Ga. 400 (54 S. E. 128); Southern Ry. Co. v. Morrison, 105 Ga. 543 (31 S. E. 564); Georgia Ry. & Electric Co. v. McAllister, 126 Ga. 447 (54 S. E. 957, 7 L. R. A. (N. S.) 1177). The rulings in the cases cited support the doctrine that the statutory presumption of negligence against the railroad company must be founded upon proof that the damage was done in one of the two ways pointed out in the statute, to which reference has already been made, and that the statute must .be strictly construed. *89Looking to the facts disclosed by the admissions in the pleadings and by the evidence in the present case, it will be seen that the nail which penetrated the plaintiff’s foot was no part of the freight which was being carried, nor was it any part of the defendant’s machinery or equipment. This- much affirmatively appears from the allegations of the petition. The nail was an object entirely foreign to the defendant’s machinery and business, and was merely present with certain piping that was being carried on defendant’s car, and its position before the moment of contact with plaintiff’s foot has never been explained. The car was in motion, but there was no fact suggesting even remotely that the motion of the car was unusual, or in any manner caused the nail to penetrate the plaintiff’s foot. On this point the plaintiff held the burden'of proof; and there was no fact in evidence from which an inference could be drawn that the motion of the car caused the injury, rather than that it resulted from some other cause, or to show that the injury would not have resulted if the car had been standing still. The wound was caused by stepping on the nail, and the negligence alleged was in allowing the nail to be at that place. Injury caused by motion of the car does not appear to have been in the mind of the plaintiff, either in drafting his petition or in introducing his evidence. There was no other fact tending to show that the damage was done by the running and operation óf the defendant’s locomotives, cars, or other machinery. In dealing with the word “running,” as employed in this connection, the case of Georgia Ry. Co. v. Reeves, 123 Ga. 697 (9), (51 S. E. 610) has not been overlooked. In that case it was said (pp. 705-6) : “It would be too narrow and restricted a view to hold that if while passengers are in transit upon a car it was stopped for one or more of them to alight, or to be transferred to another car, and the injury resulted to one of them by reason of turning out the lights in the car, or causing it to jerk while the passenger was alighting, this was not done by the running of the car, or by a person in the service of the company, if such person put out the light or caused the jerk. Such an occurrence would be a part of the actual transit. The running of the car, as used in the section of the code above quoted, is not confined to a mere collision with a person on the track. An unnecessary jerk causing an injury to a passenger while *90alighting is a part of the running, within the reasoning and spirit of the statute. Moreover, if, while the passenger is in the act of alighting, an employee of the company turns out the lights or causes the car to jerk, and as a result the passenger is injured, this would be damage done by a person in the employment and service of the company, within the meaning of the statute.” That ease is obviously distinguishable upon its facts from the case now under consideration; for the plaintiff in the present case was not a passenger, and he was not injured by a sudden, jerk of the car, nor on account of a positive act of a fellow-servant in putting out a light while he was being transferred from one car to another; but the cause of his injury was of a different character altogether, as we have already seen. But the reasoning of the court above quoted clearly recognizes the rule that the provisions of the Civil Code, § 2321, will not apply unless the injury was caused in one of the two ways specified in the statute, and to which reference has hereinbefore been made.
The rulings made in Central Railroad Co. v. Gleason & Harmon, supra, are not authority for the proposition that the evidence in this case was sufficient to raise the statutory presumption of negligence against the defendant. The facts are different, and upon this point, neither of the two cases (both relating to the same injury) has ever been followed, but the rulings of this court in subsequent cases have consistently been contrary to the broad language used in those decisions tending to hold that in a suit against a railroad company the statutory presumption would be raised by proof of the injury, although the damage was not done in either of the two ways mentioned in the statute. The records of file in this court disclose that the injury complained of in the two eases cited resulted from a failure of defendant to maintain in proper condition a driveway which had been provided for the use of vehicles driven thereon bjr persons for the purpose of receiving freight from the railroad company. On account of the defective condition of the way the wheels of plaintiff’s wagon ran off of the platform, and one of the mules got his foot fastened between one of the defendant’s iron rails and the platform, and in an effort by the driver, assisted by certain employees of the defendant known as the work gang, to extricate the mule, the animal was injured. The condition of the way .and the *91theory upon which the plaintiff brought his suit were such that it was not necessary to a recovery by the plaintiff to invoke the aid of the statutory presumption. Under the pleadings the provisions-of the Civil Code, § 2321, were entirely inapplicable. Ga. Ry. & Electric Co. v. McAllister, supra. The ruling by this court should have been no broader than the pleadings and evidence required. It may be that the court was led into.the use of the broad expression above alluded to, by evidence which showed that defendant’s servants were helping to extricate the mule when he was injured. If the theory under which the court proceeded was that the mule was injured by the servants of the defendant, the broad language used would be a recognition rather than a denial of the rule now contended for. In the present case the majority of the court do not unqualifiedly recognize the ruling in either of the two cases mentioned as authority for the proposition that the statutory presumption will arise against a railroad company upon proof of injury, regardless of whether the damage was done by the running of the locomotives, cars, etc., or by any person in the employment of the company. It is clear that the evidence does not disclose that the injury resulted from the running of the locomotives, cars, or other machinery of the defendant, in any sense, or from anything done by an employee of the defendant while engaged in the service for which he was employed. It follows, therefore, that the evidence was not sufficient to raise the statutory presumption against the defendant, even if the plaintiff had been other than an employee; and, being an employee, that it was not sufficient, even though, in addition to proof' of the injury, the evidence was sufficient to authorize the jury to find that the plaintiff was free from fault. In other words,, conceding that the plaintiff was on an equal footing with persons similarly situated, other than employees, the facts disclosing-the manner in which he was injured were not of such character as to raise the statutory presumption of negligence against the. defendant.
Having seen that the evidence was not of such character as to raise the statutory presumption of negligence against the defendant, we may next consider the evidence for the purpose of ascertaining whether it was of such character as would be sufficient under the law to support the burden of proving affirma*92fcively that the defendant was negligent, and to authorize a verdict in favor of the plaintiff. It affirmatively appears from the allegations of the petition that the nail had no relation to the freight that was being carried. There was no evidence to account for the presence of the nail on the car, or to show how long it had been there, or to explain how it came in a position to inflict the injury. There is no more reason to assume that its presence was attributable to the act of an employee while engaged in loading the car than to the act of a volunteer who may have casually thrown it on the car, or to some other agency for whose act the defendant would not be responsible.
It was contended that the defendant did not furnish a safe place of work, and was negligent in allowing this nail to be and remain at a place where the plaintiff and other employees were obliged to pass in the performance of duty. But it was not shown that the defendant or its servants knew of the presence of the nail, or had failed to exercise ordinary care in inspecting the car; or that the nail was in such a position, and had remained so for such length of time as would have rendered it, and the danger therefrom, discoverable by the exercise of ordinary care in the matter of inspection. As to all these matters the evidence was silent; and as the law raises no presumption with reference to them against the defendant, the burden of proof, so far as they are pertinent, remains on the plaintiff.
The accident was unusual, and it is not made to appear how, in the exercise of ordinary care, the defendant should have anticipated and provided against it. On the subject of accidents somewhat similar to this it will not be out of place to notice what has been said in a few cases: In East Tenn. Ry. Co. v. Suddeth, 86 Ga. 388 (12 S. E. 682), it was held that the fact “that the employee, whilst passing in the course of his duty over a car loaded with ore, stepped upon a piece of the ore, which turned under his foot, whereby he was precipitated from the car and severely injured, is evidence of injury by accident rather than by any fault or negligence of the company.” In the opinion, after discussing the evidence relative to the loading of the car and concluding that it was insufficient to show negligence on the part of the defendant, Bleckley, C. J., continued: “Granting that the plaintiff was free from fault in all he did, his own testimony *93and that of his witness screened the company by pointing out mere accident rather than the fault of any one as the cause of-the injury. While the general rule is that 'the company must explain wheffe the fact of injury is proved and the plaintiff shows himself free from fault, yet where he is the only employee who directly participates in the act resulting in the injury, and where the evidence which goes to make out his case points distinctly to accident, rather than to any negligence whatever on the part of the company or its emploj^ees, it would seem unreasonable to apply the general rule. Why should the company be required to prove itself free from fault, when the evidence for the plaintiff fails even to suggest any fault whatever against it? . . His fall was occasioned by the turning of one piece of the ore under his foot. Prima facie, such an occurrence is a mere accident. It was an accident that he stepped on that particular piece of ore, and an accident that it turned under his foot. Such casualties, it seems to us, appertain to the risk of the service in which the plaintiff w^as engaged.” In Lee v. Central R. Co., 86 Ga. 232 (12 S. E. 307), the employee was injured by stepping from a moving engine upon a clinker lying beside the track, and it was ruled that “the plaintiff’s injury was simply a misfortune, the incident of his employment and of the risk consequent thereon.” In East Tenn. Ry. Co. v. Reynolds, 93 Ga. 570 (20 S. E. 70), the employee was in the act of crossing a trestle to flag an approaching train, and wras injured by a fall occasioned by stepping upon a decayed cross-tie. The injury was held" to be “a mere casualty incident to the business in which the plaintiff was engaged, and he was not entitled to recover.” And inasmuch as the statutory presumption provided for in the Civil Code, § 2321, is not involved, we may also look to decisions from other States where there is no such presumption and where it has been held that the plaintiff could not recover, because it was not affirmatively shown that the injury was caused by the negligence of the defendant. In Fuller v. Ann Arbor R. Co., 141 Mich. 66-8 (104 N. W. 414, 18 Am. Neg. Rep. 489), it was held that “where an employee, while repairing a- car for the company, threw on the car a wrench that struck a torpedo which exploded and injured him, and there was no evidence as to how it happened to be on the car, or who put it there, or how long it had been there, though *94he recognized it as one nsed by the company, there was no actionable negligence shown on the part of the railroad company in failing to provide a safe place to work, and the court should have directed a verdict for the company.” The opinion by Carpenter, J., is in part as follows: “If defendant is responsible for plaintiff’s injuries, it is so responsible because it failed in the duty it owed plaintiff to furnish him a safe place in which to work. Defendant’s obligation, as an employer, to furnish to plaintiff, as an emplo}fee, a safe place in which to work is an obligation, not of insurance, as urged by plaintiff’s counsel, but of diligence. This obligation was performed if defendant exercised due care. Defendant is not liable, therefore, unless it was guilty of some neglect. It is not liable unless the presence of the torpedo on the car resulted from defendant’s negligence. There is no evidence of this negligence, unless that negligence may be inferred from the fact that the torpedo was on the car. Of course, it is possible that the torpedo may have been placed on the car under such circumstances as to make the conduct of defendant in failing to remove it negligent. There is nothing, however, to indicate this. It may have been placed there by a fellow-servant, or by a trespasser only a short time before plaintiff’s injury. If so, it is clear that no liability would be imposed upon defendant. It is obvious, therefore, that the verdict in this case rested upon nothing but bare conjecture. A verdict should have been rendered in defendant’s favor, unless a jury may, without any evidence whatever, guess which one of several possible causes produced a certain result. This, we have held, they can not do. See Marquette, Houghton & Ontonagon R. Co. v. Kirkwood, 45 Mich. 51, 7 N. W. Rep. 209, 40 Am. Rep. 453; Smith v. Hockenberry, 138 Mich. 129 (101 N. W. Rep. 207).” In the present case the majority appear to hold that the reasoning of Carpenter, J., just quoted, is not applicable, because the rule prevails in Michigan that a servant can not recover for an injury caused by the negligence of a fellow-servant, there being no such rule in this State where the suit is against a railroad company and the servant injured is himself free from fault. But a careful reading of the opinion quoted will show that this difference in the laws of the ■ two States becomes immaterial. The substantial point ruled by the Supreme Court, of Michigan was that the evidence failed to show affirma*95tively that the torpedo was placed on the car tinder such conditions as would show negligence upon the part of the defendant, or by some person for whose negligence the defendant would be liable to the plaintiff. As the burden of proof was upon the plaintiff, under the common-law rule, to prove the negligence charged against the defendant, the burden was not supported so long as the evidence left it inferable that the torpedo may have been placed on the car by a trespasser or by a fellow-servant, the defendant not being responsible for the act of either.
In McGrath v. St. Louis Transit Co., 197 Mo. 97 (94 N. W. 872), it was ruled: “Where, in an action for personal injuries, the facts are such that an inference that the accident was due to a cause other than the negligence of the defendant could be drawn as reasonably as an inference that the accident resulted from the defendant’s negligence, the doctrine of res ipsa loquitur does not apply, and the plaintiff can not rely upon mere proof of the facts and circumstances, and require defendant to show that he was not negligent.” To the same effect see 29 Cyc. 625; 3 Elliott on Railroads (2d ed.), §1309. Considering the evidence as a whole, the plaintiff did not support the burden of showing affirmatively that the negligence of the defendant caused his injury; and the court should have granted a new trial on the ground that the verdict was not supported by the evidence.