dissenting. Where a failure of a coupler to couple is due to a defective coupler, this constitutes a violation of the statute. The law seems settled by the decisions of the courts that the failure of couplers to couple, when conditions such as speed at which the train is moving, etc., are such under which couplers which are in good condition, and not defective, should function properly and cause the cars to couple, authorizes an inference *298that one of the couplers is defective as a coupler, and that the safety-appliance statute is violated. Auchenbach v. Philadelphia &c. Ry. Co., 8 Fed. (2d) 350; Philadelphia &c. Ry. v. Auchenbach, 16 Fed. (2d) 550 (3); Philadelphia &c. Ry. Co. v. Eisenhart, 280 Fed. 271 (2); Yazoo &c. R. Co. v. Cockerham, 130 Miss. 887 (99 So. 14); Burho v. Minn. &c. Ry. Co., 121 Minn. 326 (141 N. W. 300); Saxton v. Delaware & Hudson Co., 256 N. Y. 363 (176 N. E. 425); Chicago &c. R. Co. v. Linehan, 66 Fed. (2d) 373. There was evidence in this case that the train was being backed in the usual manner for making a coupling, where properly equipped couplers, such as the statute requires, would function and bring about a coupling of the cars. The fact that the couplers failed to couple under such circumstances, if believed by the jury, was sufficient to authorize the jury to conclude that the couplers were defective, and that the safety-appliance statute had not been complied with by the railroad company. Evidence that the couplers were of the accepted type, or, as appeared from inspection, were in good condition before and after the accident, is not conclusive as a matter of law that the defendant had complied with the statute. Such evidence merely authorizes an inference that at the time of the occurrence the couplers were not defective, and does not conclusively rebut any inference that could be drawn that the couplers were defective from, their failure to couple under favorable and proper conditions. There was some evidence that one of the couplers in question, which was the “D” type, was not the standard type of couplers accepted and recognized by the railroads at the time; that the accepted type was an improved coupler known as the “E” type. The evidence was sufficient to authorize the finding that the negligence of the defendant, in failing to comply with the safety-appliance act in respect to the equipment of its cars with automatic couplers which would properly function, was the proximate cause of the death of the deceased, and that the plaintiff, the deceased’s administrator, was entitled to recover in the amount found by the verdict.
The jury having been clearly instructed and made to understand by the charge of the court that a verdict for the plaintiff must be based only on the evidence, it was not prejudicial to the defendant for the court to fail to charge, on request by the defendant, to the effect that if they were unable to determine from the *299evidence without indulging in surmises, guesswork, or speculation, that the failure of the cars to couple was due to defective couplers or some other cause, the plaintiff failed to make out a case of liability against the defendant based upon defective couplers; or for the court to fail to charge, on request, that the law does not permit the jury to speculate or guess that a failure of the cars to couple was due to any defective coupler, and that before the plaintiff could recover on account of the failure of the ears to couple he must prove by a preponderance of the evidence that one or both of the couplers was defective and caused the cars to fail to couple, and that speculation or guesswork can not be indulged in by the jury. I am of the opinion that the evidence authorized the verdict for the plaintiff, that no error was committed of which the defendant can complain, and that the judgment overruling the motion for new trial should be affirmed.