Mr. Justice Horton
delivered the opinion of the court.As we had occasion recently to say (G-en. Ho. 8931 not yet reported):
“We understand the rule in this State to be, that when the testimony in a case on trial before a court and jury, is such that it would be the duty of the court, if a verdict should be returned in favor of the plaintiff, to set the same aside for want of sufficient evidence to support it, that then it is the duty of the trial court, upon motion to that effect duly made, to instruct the jury to return a verdict of not guilty.”
After a careful examination of the testimony in the case at" bar we are satisfied that the trial court did right in directing a verdict of not guilty. The testimony does not sustain the charge in the plaintiff’s declaration that an engineer in the employ of defendant “ recklessly, carelessly and negligently ” drove and ran an engine upon or against the deceased whereby he was so seriously injured that he died.
The onus is upon the plaintiff to show the negligence charged. For this purpose they call as a witness the fireman upon the engine which ran over the deceased. The defendant called the engineer in charge of that engine. Their testimony is summarized in the foregoing statement. They are the only persons having any knowledge of the facts. There is no contention or intimation that they are in any respect otherwise than truthful.
Again the declaration avers that the intestate died from injuries received by being run over by said engine. It was necessary that this averment should be sustained by the proof. Generally speaking, where a person is shown to be living the presumption is that life continues until the contrary is shown. Without here reviewing the testimony at length, we may say, that it tends very strongly to show that the deceased was in fact dead before the engine reached him. Substantially all the circumstances point to and are consistent with that contention.
On behalf of the plaintiff it is said that the trial court erred in excluding testimony offered to show that at the time of the accident, employes of defendant were accustomed to cross the tracks at the place where this accident occurred. In the view we take, and have above sought to express, such testimony was immaterial and was properly excluded. If the intestate was not killed by being run over by the engine, or if his death was not caused by the negligence charged in the declaration, it is immaterial whether he was or was not rightfully crossing the tracks of defendant.
The judgment of the ‘Superior Court must be affirmed.