On Petition for a Rehearing.
Elliott, J.We have given the elaborate brief filed on the petition for a rehearing careful study, but find nothing in it that shakes our confidence in the conclusions stated in our former opinion.
. Counsel assume that the fever of which the plaintiff’s intestate died was an independent cause, entirely separate from the injury received by the fall from the trestle-work. The evidence does not warrant this assumption, for it shows that the injury concurred in producing the fever, and also in producing the enfeebled condition which incapacitated the injured man from resisting the inroads of disease. There was not only a condition created which made it probable that the intestate would take on the disease, but there was also such an onfeeblement of the system as impaired its power to repel disease.
Counsel argue the ease as though it were necessary that the. -evidence should show with direct and positive certainty that the injury pi’oducod death. The assumption upon which the argument rests can not be made good. It is not necessary in any civil case to prove the substance of the issue by direct or *363positive evidence. It is sufficient if there are facts fairly warranting the jury in inferring the conclusion insisted upon by the plaintiff. Indianapolis, etc., R. R. Co. v. Collingwood, 71 Ind. 476; Indianapolis, etc., R. W. Co. v. Thomas, 84 Ind. 194; 1 Greenl. Ev., section 13, n. In the case before us, the evidence very clearly and fully warranted the inference that the injury concurred in producing death; indeed, any other conclusion would be directly opposed to that which the evidence supports.
It was not necessary that the appellee should show that the injury was the sole or direct cause of the death. The conclusion stated in our former opinion is fully sustained by a case which has been brought to our attention since that opinion was written. The case to which we refer is that of Beauchamp v. Saginaw, etc., Co., 50 Mich. 163, S. C., 45 Am.R. 30. In the course of the opinion the court said; “ Is it clear beyond dispute, that the cold taken, pneumonia and death were independent and separate from the injury received and sickness resulting therefrom? Can it be said with judicial certaintj that the injury, the sickness and weakness following therefrom did not directly cause or largely contribute to the attack of pneumonia, and that the party wrongfully injured was as able to withstand this resultant attack as he would have been if a good, healthy, well nourished boy ’ as at the time he received the injury? If the injury received and sickness following concurred in and contributed to the attack of pneumonia, the defendant must be held responsible therefor. It can not be said that here was a second wrongful act, or a disease, wholly independent of the first wrong, which caused the death of the boy. People v. Cook, 39 Mich. 239.” The case in hand is in every feature infinitely stronger' than the one from which we have quoted.
In commenting upon the case of Baltimore, etc., R. R. Co. v. Reaney, 42 Md. 117, cited in the former opinion, counsel criticise it with much severity, but their judgment is opposed by very weighty authority. The case is fully approved in *364Beauchamp v. Saginaw, etc., Co., supra, and in the following text-books is cited with approval: Cooley Torts, 79; 2 Thompson Neg. 1084; 3 Sutherland Dam. 418. It is sustained by the English cases which are cited in the opinion of the court, and we are content to join them rather than follow counsel.
Cases are cited by counsel as to evidence of negligence in cases where the relation of carrier and passenger does not exist, and all that need be said of them is that they have no application at all to a case like this, where the relation of carrier and passenger existed.
The general rule upon the subject of proof of negligence in a case like this, stated in our former opinion, is that laid down in Jeffersonville, etc., R. R. Co. v. Hendricks, supra, where it was held that proof of the happening of an accident to a passenger is prima facie evidence of negligence on the part of the carrier, and that rule has been enforced by many cases, as we have heretofore shown. We did not hold in our former’ opinion that the rule applied to a case where there was nothing more than a simple failure to stop at a regular station ; we had no such case before us; but we did hold that the general rule applied to a case where the evidence showed that the train was stopped on a dangerous trestle-work after there had been an implied invitation to alight, and where no warning was given to the passenger to remain on the train. We have no doubt that such evidence makes a prima facie case which will prevail unless overcome by evidence from the carrier. The casé of Delaware, etc., R. R. Co. v. Naphes, 90 Pa. St. 135, sustains our view and lends counsel no support. In that case it was said that the general rule was a reasonable one, “because the company has in its possession and under its control, almost exclusively, the means of knowing what occasioned the injury and of explaining how it occurred, while as a general rule, the passenger is destitute of all knowledge that would enable him to present the facts, and fasten negligence on the company, in case it really existed.” Any other rule would practically absolve railway carriers from lia*365bility in a great majority of eases, for the passenger would seldom be able to ascertain the real cause of the accident. The case before us supplies an apt illustration of the unreasonableness of the rule for which the railroad company contends. How could Mr. Buck, made delirious by his fall from the trestle-work, have ascertained what caused the train to run by the station and stop a short distance beyond upon a dangerous trestle-work'?
There was no evidence satisfactorily explaining the stopping of the train upon this trestle-work, and the failure to warn of danger the passenger that the conductor knew expected‘to alight at the station. Nor was there evidence explaining why the train ran by. There was evidence showing that the brakes slipped, but no evidence at all showing that they were in order, were properly constructed, or even that they were properly applied. They may have been air brakes, and yet neither properly constructed, nor in good order, nor timely applied. The conductor, knowing that his passenger desired to alight, and knowing, as the evidence tended strongly to show, that the name of the little station was not usually cried, ought to have seen that the passenger was in some way notified of the dangerous stopping place. There were other facts tending to show' negligence, as, for instance, that the men engaged in running the train were taken from other trains, and, taking all the evidence together, it was abundantly sufficient to warrant the jury in inferring negligence.
We do not deem it necessary to again go over the authorities cited on the subject of contributory negligence; they fully sustain our conclusion. The question in Cincinnati, etc., R. R. Co. Peters, 80 Ind. 168, was one of pleading; here it is one of evidence. All that was decided in that case is stated in the opinion of Worden, J. The argument of Commissioner Franklin was not approved. The case of Jeffersonville, etc., R. R. Co. v. Hendricks, 41 Ind. 48, fully sustains the conclusion reached by us. We quote: “ Was not the attempt of the decedent to leave the cars, under the facts stated, ‘ made *366under such circumstances that a person of ordinary caution and care would not have apprehended danger therefrom ?' If it was, then the decedent was without fault or negligence; and in our opinion, the decedent was not guilty of negligence in attempting to leave the train under the circumstances. The train having very nearly come to a full stop, the decedent had the right to suppose that it would stop long enough for her to leave the train; and she had also the right to suppose that some of the agents of the company would be present to aid and assist her in leaving the cars, and if her just expectations had been realized, she could and would have safely left the train.” So, in this case, if the railroad company had done its duty, or had conformed to its usual practice, the deceased's reasonable expectations would have been realized, and he could have left the train in safety. The text-writer referred to by counsel gives their argument no suppoz’t, for he says, as we have said, that the question of contributory negligence is “in every instance of the kind one of fact for the jury.” Hutchinson Carriers, section 615. It is also said by this author: “ Such companies must be extremely careful not to mislead their passezigers into the belief that the halting of a train at a station is meant as an invitation to them to alight where it is not so intended, and that if the conduct of the-servants engaged in its management is such as may reasonably produce that impression, and the passenger so understands it, and in the attempt to leave the coach at a place where there are no facilities provided for his doing so, and whilst in the exercise of due diligence he is injizz-ed, the company will be liable.”
Filed June 25, 1884.In the case in hand we need not inquiz’e what effect uncontz’adioted evidence that it has been the uniform custom to call the station before permitting passengers to alight w'ould have had, for there was evidence tending to show that there was no such custom, and that the station was .very seldom called.
Petition overruled.