dissenting.
I find myself unable to concur in the majority opinion in this case. It appears that when the cause was remanded to the district court, after a reversal of the former judgment, the plaintiff amended her petition by adding thereto the allegation that it was the custom of the defendant to station a man on the footboard in front of its moving engines to warn trackmen of their approach, and that defendant was guilty of negligence in not following such custom, which negligence caused the death of the plaintiff’s decedent. This allegation was denied, and, as I read the record, no competent evidence was produced by plaintiff tending to establish the fact alleged. This was the *161only material change in the pleadings, and, aside from plaintiff’s attempt to establish that issue, the evidence was the same as it was upon the former trial. On the former appeal, Zitnik v. Union P. R. Co., 91 Neb. 679, it was held: “The fact that the person injured was in a situation of -danger and so situated that he could have been observed by the defendant must be proved by a preponderance of the evidence. The jury is not at liberty to estimate the liabilities in that regard without substantial proof.”
As I understand the record, it contains no substantial proof of any negligence on the part of the defendant company, and, in order to hold the defendant liable, it is necessary to conjecture a state of facts which the evidence itself fails to establish.
As I view the record in this case, the district court should have sustained the defendant’s motion to direct a verdict in its favor. Without further comment, I respectfully dissent from the majority opinion.
Hamer, J., joins in this dissent.