(Dissenting.) — I do not concur in the order vacating the judgment and directing the dismissal of the action. I concur in holding that the record contains no substantial evidence of plaintiff’s loss. In Calumet & Arizona Min. Co. v. Chambers, 20 Ariz. 50, 176 Pac. 839, we pointed out that, in actions based on this employers’ liability law, the plaintiff is required to prove the actual loss sustained proximately caused by the accident. In Arizona Copper Co. v. Burciago, 20 Ariz. 85, 177 Pac. 29, we defined “damages,” as used in paragraph 3158, as having reference to and meaning all loss to the employee which is actually caused by the accident, and the amount of which is susceptible of ascer*220tainment, excluding all speculative, exemplary, and punitive damages.
A failure to ascertain the amount of such damages is, of course, a failure to show liability. Failure of proof of loss is a failure to ascertain the amount of loss actually suffered by the plaintiff. Hence plaintiff failed to present a right to recover, and defendant’s motion to so direct the jury was good. The court committed reversible error by denying such request and motion. For this error, appellant is entitled to have the judgment vacated, and a new trial awarded it.
I do not agree with Judge ROSS’ finding that this record presents a clear, indisputable case of negligence of the employee killed, as the sole, direct and proximate cause of the employee’s death. Fair minds will agree that Jesse T. Gardner failed to observe a reasonable degree of caution when he attempted to close the switch. Without room for doubt, his careless act in reaching for the switch handle was an efficient, proximate cause of his death; but was such negligent act the sole cause of his death?
The appellee contends that such careless act of the deceased, combined with the negligence of the appellant, directly caused the accident and injury. As a consequence, the appellee contends, the careless act of the deceased amounted, at most, to contributory negligence, and a recovery is therefore authorized. The appellee contends that the failure of the appellant to furnish the employee safe appliance with which to perform the duties assigned the employee is negligence, and appellee points out that the switch in question was not safe, and grounded electric wires, necessitating the use of the switch, enhanced the danger to the employee while actually performing his duties. Of course, an employer is not required *221to furnish, appliances that are absolutely safe and harmless, without regard to the manner of use the employee adopts, yet negligence is a fact to be found by the jury from the evidence in the case, and not a matter of law to be determined by the court.
It was for the jury to determine from all the testimony before them whether the employer had, in fact, discharged its duty to Jesse Gardner by furnishing him reasonably safe appliances to perform the duties of his occupation. I can see room for different conclusions to be reached from all the evidence in the record on this question. I am unable to concur in the principal opinion that this is a case wherein the deceased is shown, as a matter of law, to have met his death from his own unquestioned and unquestionable negligence — that his own negligence was the sole cause of the accident and death of Jesse T. Gardner. I am convinced that the evidence fails to show any loss to the father of Jesse T. Gardner, resulting from the death of Jesse. The consideration of all other alleged errors is wholly unnecessary to the disposition of this appeal.
I am, for that reason, of the opinion that the proper order justified is that the judgment be reversed and the cause remanded for a new trial.