ON REHEARING.
A rehearing having /been granted in this ease, we have again considered the questions presented, and after mature delibration e are forced to -adhere to- the views expressed ¡in the foregoing opinion.
Counsel for appellant strenuously contends that there was sufficient evidence, when the record proof of terminal weight is considered, to require a -submission of the case to the jury. He also contends, iin -any event, that the ruling of the trial court in excluding *26the record proof offered to show the terminal weight of the grain was -prejudicial error. Both of these questions were raised and squarely passed upon at the prior 'hearing; ¡but, in view of the earnestness and zeal of appellant’s counsel in pressing these questions again to our attention, we will once more briefly consider his contentions. As stated ¡by him, it is entirely .true that, in an action against a common carrier for loss of goods in transit, a prima facie case is established by ¡proof that the carrier received the goods for transportation and failed to deliver them safely. Conversely stated, the rule is that, in order to¡ make out a prima facie case, plaintiff must prove that the goods received by the common carrier were not all safely delivered. How stands the proof, assuming that the record evidence of terminal weights was admitted? The most that can be claimed is that, according to the private -scales at Barlow, upon which the grain was weighed, there were delivered to defendant 1,328 bushels of flax, and that, according to the records in the office of the state weighmaster at Duluth, which are prima facie correct, there were delivered to> the consignees only about 1,237 .bushels. From such -mere prima facie discrepancy in the weights as recorded on these two scales the inference or ¡conclusion is deduced that 90 bushels of flax were lost or taken from the car while in transit. Not a scintilla of evidence was offered aside from the above to prove that any flax was in fact lost or removed from the car; plaintiff’s entire case resting upon the mere inference aforesaid. Thus it is seen that plaintiff’s entire case rests upon a mere inference or presumption based, not upon facts, but merely upon other presumptions', to wit, that the Barlow scales -were accurate, and .that the -public -record in the state weigh-master’s office speaks the truth. Presumptions or inferences cannot be ¡based upon other presumptions, but must foe based upon proven facts. Not only this, but a presumption ordinarily has no probative force, and, when contrary evidence is adduced, the presumption disappears. 9 Enc. of Ev. 885, and cases cited; 16 Cyc. 1051-1087; 22 Am. & Eng. Enc. of L. (2d Ed.) 1236, and cases cited. The reason for the rule is well stated in Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454, as follows: “Presumptions and inferences are logically the same. From one fact proven, another may foe inferred or presumed, if the inference or presumption is a logical result, and as such legally admissible; but to hold that the fact thus inferred or presumed at once ¡becomes an established fact *27for ¡the purpose of serving as a base for a further inference or presumption would be to spin out the chain of presumptions into the regions of the barest conjecture.” See also, Chicago, R. I. & Pac. Ry Co., v. Rhoades, 64 Kan, 553, 68 Pac. 58, and cases cited. Is it a fair and logical inference or presumption that 90 bushels of the flax were lost in transit merely because of the prima facie discrepancy ini the two scales of that amount? We think not, nor do we think the jury should be permitted by mere guesswork or conjecture to draw any such inference. It would be just as reasonable to account for such prima facie discrepancy in other ways. The scales at Barlow may not have weighed accurately, or some of the persons who weighed the grain may have made a mistake or have been careless in recording such weights. This is true also with reference to the deputy weighnmster at Duluth. Again, it may be that the entire 17 loads claimed to have been weighed at Barlow were not put into the car or that during the two days plaintiff and his men were engaged in loading the car some of the flax was taken therefrom. Defendant’s liability as such common carder did not arise until the -car was loaded and ready for shipment. Until such time the grain was wholly at plaintiff’s risk. There is no testimony tending to show that some of the flax was not removed or could not have been taken from the car during the two days required in loading it. Jurors will not be permitted to guess or speculate what the facts are and base a verdict on mere inferences or presumptions. Union Pac. R. R. Co. v. Bullis, 6 Colo. App. 64, 39 Pac. 897. This they would have had to do under the state of the proof in the case at bar, had! the ¡case been submitted to them.
Thus far we have assumed that plaintiff sufficiently proved the fact that he delivered to the defendant, by placing in said car, the amount of flax -claimed by him to have been thus delivered. An examination of the testimony serves to convince us that his proof in this regard is by no means satisfactory. Plaintiff .testified. “My flax -was loaded in this car. I helped to load it. I couldn’t say that I was there during the entire loading. There might have been some work while I w-as away. There might have been some put in there before I was there to put it ¡in. I helped do the hauling. I hauled some loads. Quite a number of different men .assisted me doing that hauling. I knew their names, but I might miss some of them. I did not do the weighing. The weighing of th-e flax *28placed in the ear was done by Jesse College, I. E. Sutherland, and Glenn Sutherland. ' These three men weighed all the flax placed in the car.- They brought in loads the same as the rest of the haulers. I think there were 17 loads went into the car. I wouldn’t be positive, but I think that was it. I had this flax in my granary before I loaded it into the car. I would judge seven or eight, maybe nine people hauled to the car. I could not say, in there somewhere. My granary is 10 miles from the railroad depot where this car was standing. I think there were about 17 loads as near as I could say. I took some of -these loads myself. I know I took 2, and possibly 3. I think I had enough teams to put it in. I us-ed two days, the fourth a'nd fifth. I saw it all loaded at my granary :and started it. Some got there before I did, and I never heard anything to the contrary but that it went into the car; but I couldn’t say how many I saw go direct into the car. I didn’t see all of it go into the car. I suppose there were several loads at least which I didn’t see put into the car. The flax was weighed at the time, of the proceeding when each load got to the car. Three .different men weighed it. I know nothing about the weights, except as they told me. I -assisted some, but I wasn’t there all the time, because my end was at the granary. I was there until the last wagon left. I counted the loads that w-ere taken away from my granary to be put in this -car. At this time, as near as I can tell, there were about 17 loads; but I might be mistaken. Seventeen loads is my -best remembrance now. None of it was returned by any of these parties, who took it away. This flax -was weighed on Mr. Peterson’s scales at Barlow. The scales I would judge were 35 yards from the car. I couldn’t say how many 1-oads I put into the car after they were weighed.”' Jesse College testified that he weighed 11 loads of this flax, and knows that the 11 loads went into the -car; but '.he testified that all he knows about the scales upon which he weighed said loads is that they were balanced right, and he took it for granted that they weighed correctly. The witness Glenn Sutherland testified that he assisted in hauling and weighing some of this flax. He hauled two- loads and weighed four loads. He says the scales were farm scales, and thinks they were of standard make and in apparently good condition at that time. He says he took the correct weights of the four loads which he weighed and gives the net weight thereof. He also testified that these four loads went into the -car. Witness does not know how many loads were put into the car. Witness I. E. Sutherland *29testified that he. hauled :and weighed, two loads of the flax and put it in the car, and says he knows'the weights to be correct, if the scales were correct. Witness Peterson, the owner of the scales, testified that they were in good order at the time the weights were taken.
Whether .plaintiff delivered to the defendant the number of bushels claimed by him. to have been delivered depends upon the assumption that these private scales at Barlow were accurate, and that these persons who did the weighing weighed the grain correctly, and, also, that all the grain so. weighed was placed in the car, as well as the further fact that none of such grain during said two days was taken thereirom. The amount of grain delivered by defendant to the consignees, as claimed, rests upon the assumption that the scales at Duluth were accurate, and that the deputy weighmaster correctly weighed said car. Is not the inference to be deduced from the mere discrepancy in these weights just as reasonable that one of these scales was inaccurate, or that one of these persons incoi rectly, through mistake or otherwise, weighed said grain, as that some of it was lost in transit, especially in view of the testimony that said car was a good car and in good condition, and there being no evidence of any leakage? If the seal was not intact when the car arrived at its destination, such fact could 'have been shown iby plaintiff ¡by the testimony of the inspector at Duluth. The burden was on plaintiff to establish his claim that grain was lost or taken from the car while in transit, and not on defendant to establish the contrary, and plaintiff was not relieved of this duty because of the difficulty in furnishing such proof.
Appellant’s next contention, that the ruling of t'he trial court in excluding the record evidence of the terminal weight was prejudicial error under the rule announced in Brundage v. Mellon, 5 N. D. 72, 63 N. W. 209, is clearly untenable. The case at bar is clearly distinguishable from the Brundage case. The ruling in that case made it impossible for plaintiff to prove his cause of action. As stated in the opinion: “The attitude of the court in sue'h case is that * * * the .plaintiff, as a matter of law, cannot recover on the theory of the case on which he is seeking to recover at the trial.” In the case at bar the attitude of the court by its ruling was that plaintiff could not prove one feature of his case by the method attempted, not that no recovery could be had if plaintiff proved the fact sought to be proved, to wit, the weight of the *30grain at Duluth, together with the other facts alleged by him as constituting his cause of action. In other words, by such ruling plaintiff was not, in effect, told that evidence tending to show loss of the grain in transit would have been rejected if offered. It is apparent that plaintiff relied solely upon the discrepancy in the weights to prove the main fact in his case, and that he had no other evidence to offer on that issue. Therefore the general rule, which is recognized by the court in the Brundage case, that a reversal will not ibe ordered for error in excluding testimony when the plaintiff, assuming that the excluded evidence was admitted, has failed to prove his cause of action, applies.
(118 N. W. 344.)Judgment affirmed.
Morgan, C. J., concurs.