On Petition for Rehearing.
Mr. Justice Maxwell:.Plaintiff in error contends that the opinion contains an incomplete and imperfect statement of its contention, and that the conclusion based on such imperfect statement is unsound and ill-considered, and cannot be supported by the authority of a single ' case.
The statement, as contained in the original brief, is:
*282. ‘ ‘ The cause of the injury to the plaintiff is not disclosed by the evidence. Such injury is not shown to have been caused by the rock which ‘fell out of the sides of the shaft.’ ”
Now the statement is: “ Our contention, plainly stated as it was, is:
‘ (1) That the allegation that the rock which injured plaintiff “fell put of the sides of the shaft” which defendant had negligently left untimbered, was a material and ultimate fact upon which plaintiff’s alleged cause of action rested, and (2) that, in the absence of specific evidence showing that the object which injured him did fall out of the sides of the shaft and could not and did not come from any other place, the defendant in error has failed to prove his'cause. ’ ”
In the original brief, two cases were cited from the courts of this state.
D. & R. G. Co. v. McComas, 7 Colo. App. 121, was an action by a brakeman to recover damages for injuries sustained by reason of an accident occasioned by the engine upon which he was riding running into a rock which had fallen upon the track. We quote from the opinion, supplying some portions of it omitted from plaintiff in error’s brief, which we italicize:
‘ ‘ The plaintiff proved the general circumstances of the accident, and offered testimony tending to show the size of the rock, its presence on the track, and indicated, as near as might be, the place from which the rock came. ITe showed the widening of the gauge and the blasting. The jury was then left to infer the company ivas negligent and careless in providing a safe way. The rock was three to four feet in dimensions in every direction, and a hole was said to be visible on the bluff, some twelve or fifteen feet from the roadbed, about the size of the rock. *283Nobody saw the rock fall, nor was there any satisfactory evidence produced to establish ¡the place from which it came. Nobody took the trouble to go up and examine the hole,- or make any measurements of it, or any examination wherefrom they could testify concerning the probable condition and situation of the -rock prior to the time it fell on the track. * * * Manifestly, if the hole had been examined and measured, it would have been a relatively easy matter to determine with reasonable certainty whether the rock came from that hole or from further up the mountain. This was a very important matter in its bearing on the question of the negligence of the company. * * * It is thus apparent the only thing which the plaintiff did was to- show there was a rock on the track and a hole in the bluff from which it might have come. All these things might easily be true, and yet the company be guilty of no negligence in providing a safe way. * * * The plaintiff wholly failed to establish the negligence which fastened a liability on the company. * * * This statement very clearly demonstrates both the failure of the plaintiff to prove the company was negligent, and the su,ccessful effort of the company to establish the use of the requisite care in the management and maintenance of a dangerous portion of their road. We are therefore compelled to conclude the compcmy ivas not shoivn to be negligent.”
Thus it is seen that the question under consider- . ation and ruled in that case was not the failure to prove the cause of the accident, but the- failure to prove the negligence of defendant, and the court held that there was- not only no proof of negligence, but the absence of proof of facts from which negligence- might be inferred.
In Murray v. R. R. Co., 11 Colo. 124, plaintiff, with other laborers, was repairing a roadbed in a *284narrow cut; a car loaded with stone became in some way detached from a construction train of the defendant, distant about one-half a mile from the cut. It ran down the track through the cut, coming into collision with a push-car, jumped the track, and the plaintiff received an injury.
This paragraph in the statement preceding the opinion is omitted from the statement of the case in plaintiff in error’s brief:
“Plaintiff was injured more or less seriously, either by jumping against the walls of the cut, or by certain stones thrown from the car in passing; it does not clearly appear which. ”■
The opinion is: “The plaintiff, at the time of the injury complained of, was an employee of the defendant company. The evidence showed the accident and the injury to the plaintiff, but left the cause of the accident entirely unexplained. This was not sufficient to raise a presumption of negligence upon the part of the company. In actions of this character the presumption is, that the employer has discharged his duty to the employee. It was for the plaintiff to overcome this presumption by shoiuing negligence upon the part of the company (citing authorities). This the plaintiff failed to do; the evidence does not fix liability upon any one. The cause of the accident is uncertain. It may have been the result of a defect, either latent or patent, in the machinery or appliances used, and the defendant company may or may not have had notice of the defect ; it may have resulted from the neglect of an incompetent fellow-servant, of whose incompetency the company had full knowledge or no knowledge whatever; or it may have resulted from some other cause possible in the field of conjecture. Upon this point the jury would have been left to speculation had the cause been submitted to them. There was a defect *285of proof which precluded the application by the court of any known rule of recovery. The plaintiff failed to ‘prove a sufficient case for the jury,’ and this is a statutory ground of nonsuit. — Code Civil Procedure, page 48. oThe judgment of the court below is affirmed. ’ ’
In its final analysis, this case held that the presumption is that the employer has discharged his duty to the employee, and that the employee must overcome this presumption by showing the negligence of the employer.
We have carefully read the authorities, some fifty in number, cited by plaintiff in error in its brief in support of its petition for a rehearing, and are of the opinion that they are not in point. They all go to the principle that negligence, when relied upon, must be proved, or it may be inferred from facts proved, but never from conjecture.
It would be useless to review all of the authorities cited, but to sustain the conclusion we have arrived at, and to establish from the authorities cited the existence of the rule that it is within the province of the jury to infer the existence of a fact from proof of the existence of other facts, we here give pertinent excerpts from a few only of the cases cited in the brief in support of the petition for a rehearing, and dismiss the others with the statement that they do not support the contention of plaintiff in error.
“Everything relating to the cause and manner of the death of plaintiff’s intestate is matter of pure speculation. Of course, the inference is warranted that he fell from the train and was run over; but no inference is deducible that the accident was attributable to any neglect or to any omission on the defendant’s part with respect to that, duty and care which the law requires of it. All that is positively known is the fact of the violent death of the intestate, *286and that is not enough to authorize an inference of defendant’s negligence.’.’—Borden v. D., L. & E. R. Co., 131 N. Y. 671.
‘ ‘ The burden of showing negligence rests on the, plaintiff; and, before he can be entitled to a recovery, he must prove a state of facts that warrants the inference of ■ negligence. He cannot rest his case upon facts as consistent with due care as with negligence. ’ ’—Kincaid v. Oregon S. L. R. Co., 22 Ore. 35.
In Douglas v. Mitchell, 35 Pa. St. 440, the court approved an instruction containing this language:
“That as proof of a fact, the law permits inferences from other facts proved, but does, not allow presumptions of facts from presumptions. A fact being established, other facts may be, and often are, ascertained by just inferences.”
“Evidence furnishing a reasonable basis for satisfying the minds of the jury that the clogging of the netting, through the negligence of the engineer in the management of the engine, was the proximate and operating cause of plaintiff’s injury, would have been sufficient.”
In the absence of such evidence, the court, in this case, held the plaintiff not entitled to recover.—Orth v. St. Paul M. & M. Ry. Co., 47 Minn. 384.
“A jury are not warranted in finding a fact established by a greater probability unless, also, the evidence satisfies them that the fact exists. The conclusion that it exists may be drawn from a preponderance of probabilities in its favor, but the probabilities must be such that the conclusion may be drawn, or it is not proved.”—Dunbar v. McGill, 64 Mich. 676.
“If all the circumstances attending the accident were in evidence, the mere absence of evidence of fault on the part of the person injured might justify an inference of due care. But where, as in this case, *287there is an entire absence of evidence as to what Dolan was doing at the time of the accident, it is not enough to show that one conjecture is more probable than another. There must' be some evidence to show that he was in the exercise of due care. ’ ’—Tyndale v. O. C. R. Co., 156 Mass. 503.
Plaintiff in error introduced no testimony at the trial. The statement of the testimony upon the point under consideration, contained in the original opinion, stands uncontradicted.
The gravamen of the complaint is the failure of the employer to provide a reasonably safe place for the employee to work in. This constituted the negligence of the employer,
The following facts were proved: The negligence of the employer; the unsafe.and dangerous condition of the lower-20 feet of the shaft; the liability of rock to fall therefrom; the properly timbered condition of the remainder of the shaft; the injury to plaintiff by the falling of a rock down the shaft; the nature of the injury; the rock which fell and size thereof. Prom which facts, the jury, under proper instructions, given at the request of plaintiff in error, drew the just, reasonable and legitimate inference or conclusion that the rock which injured plaintiff fell out of the side of the untimbered portion of the shaft. Indeed, it seems to us that no other conclusion could have been drawn from such facts, and that such conclusion is indisputable.
No one saw the accident, hence it was impossible to produce direct testimony to the effect that the rock' fell from the untimbered portion of the shaft. The very nature of the case made it necessary for plaintiff to rely upon circumstantial evidence to prove the cause of the' injury; to prove facts from which a legitimate inference of the cause of the injury might be drawn by the jury.
*288This was done; the inference drawn by the jury was legitimate, and warranted by the facts proved.
The petition for rehearing will be denied.
Denied.