Dissenting Opinion.
Hadley, J.— I find myself unable to agree with the majority that there was not sufficient evidence to warrant the jury in finding that the defendant was the wrongdoer. I concede that the record discloses no direct or positive evidence that the defendant was operating the car upon which the plaintiff was injured, or that it owned the car, or even owned a railroad in the city of Indianapolis. But it is a familiar principle that inferences which naturally arise from facts proved may be indulged as evidence, and, where they arise to that degree of cogency and force which becomes convincing, they may be accepted as proof.
This is the case made by the record: The plaintiff charges in her complaint that the defendant owns and operates a street railroad ip the city of Indianapolis, which, among other streets, runs through Senate avenue; that she took passage on one of the defendant’s cars to go to her home in Senate avenue, and paid her fare to the conductor of the car; that while such passenger, and when engaged in alighting from the car at her home in Senate avenue, she was injured by the negligence of the defendant’s servants in charge of said car. The defendant was properly brought into court to answer this charge. It employed counsel, filed its answer, cross-examined the plaintiff’s witnesses, introduced and examined nine of its own witnesses exhaustively concerning all the happenings connected with the accident, among its witnesses being the motorman who was running *35the ear, and a civil engineer, who, upon the request of the defendant’s attorney, made an accurate map drawn to scale of the place of the accident and its environments. The map so made was introduced in evidence by the defendant, and while testifying concerning the same the engineer explained particular things indicated by it. Among other things he explained two exterior parallel lines running north and south as indicating Senate avenue. Between these exterior lines and near the middle of the street are four parallel lines which he explained as representing the street car tracks. Between the two east lines, explained as street car tracks, and near the spot where the plaintiff received her injuries, appear the word and letters printed in pencil “Citizens St. E. E.” This word and letters were not explained by the engineer, or any other witness. There were other words and figures in pencil and in ink on the map that were not explained or identified by the engineer, hut obviously denoting distances, and names of streets, places, and properties. The map showed the situations at that part of Senate avenue as they previously existed, the street railroad tracks, five or six weeks before the trial, having been taken up at that place and removed. The defendant prepared, and at the close of the evidence requested the court to give to the jury, fourteen different instructions, each and every one of which related exclusively to the respective duties of the parties growing out of the relation of passenger and carrier.
It is shown that, from one end of the trial to the other, while engaged in presenting its defense to the court and jury, the defendant did not, by act, special pleading, evidence, or request, make any denial, or show of denial, of being the responsible party, or suggest, or attempt to prove that the injuring car was being operated by another; that four days were consumed in contesting the merits of the case, when the appellant could have ended the trial in an hour by showing that it was not answerable for the negli*36gence complained of, and by every step taken, by every question asked of a witness, by every item of evidence offered, by every request for instructions, it acted, in the presence of the court and jury, as if its responsibility for the management of the car was confessed. Were the court and jury to shut their eyes to all this ? Nor is this ail. The appellant produced, as a witness, the motorman who was running the car by which the plaintiff was injured, and of whom appellant asked the following question: “How long have you been in the employ of the company as motorman ?” and who answered, since 1894, and who testified that at the time of the plaintiff’s accident’ he was running the car northward on the east track in Senate avenue, and the plaintiff (a lady) fell off the car at the place in Senate avenue described by the witness. The place described and its situations were afterwards exhibited to the jury by the defendant’s map, and the east street car track marked “Citizens St. R. R.” This map went to the jury bearing the guaranty of the defendant that it conveyed no evidence but the truth. It was prepared by the defendant’s procurement, and exhibited to the jury for their enlightenment. Its introduction was at least a license to the jury to indulge the natural inference arising from every line, and figure, and word, and letter upon it. Every mark intentionally made upon the map had behind it a purpose. That purpose was rightly to guide the jury. The inference from the presence of the words is that they were placed there by the map maker to indicate the ownership of the railroad. .If the purpose were otherwise, it should have been explained by the party introducing the map. What then shall be done with the words “Citizens St. R. R.” printed upon the identical track, in the identical street, near the identical spot of the plaintiff’s accident ? Can it be said that the jury shall disregard them ? If these words are to be eliminated from the map, then why shall not the map .itself be eliminated from the evidence ? By placing myself in the point of view occupied *37by the court and jury during the progress of the trial, and looking at the conduct of the defendant, and the character of the evidence, I am firmly impressed that the jury had before them sufficient evidence to justify the finding that the averments of the complaint were sustained.
I am unahle to distinguish this case in principle from Evansville, etc., R. Co. v. Snapp, 61 Ind. 303; Evansville, etc., B. Co. v. Smith, 65 Ind. 92; Wabash R. Co. v. Forshee, 77 Ind. 158 ; and Cincinnati, etc., R. Co. v. McDougall, 108 Ind. 179. In the Snapp case it is said: “In the case at bar, there was no direct or positive evidence adduced upon the trial, that the appellant was the OAvner of, or operated, the railroad upon which the appellee’s mare was run over and killed. The evidence showed that the mare was run over and killed on the Evansville and Crawfordsville Railroad. The appellant, the Evansville and Crawfordsville Railroad Company, was sued for the killing of said mare on its railroad, and appeared to, and was therd before the jury defending, the action. There was not a particle of evidence adduced upon the trial tending to show that the railroad in question was owned or operated by any other person or corporation than the appellant; but it seems to have been assumed and taken for granted, as a fact about which no evidence was needed, that the railroad was OAvned and operated by the appellant at the time the appellee’s mare Avas run over and killed thereon. Under such circumstances and 'the evidence on the trial, it seems to us that the jury trying the cause might have fairly and reasonably inferred and found that the appellant owned and operated the railroad in question at the time the appellee’s mare was killed thereon; and especially so, in the absence of any evidence whatever from which it could possibly be inferred that such railroad Avas owned or operated by any other person or corporation than the appellant.”
In the Eorshee case, horse tracks were seen on the railroad, and the mare was found injured tAventy-two feet from *38the south rail, and looked as if she had been hit with something. In respect to the evidence the court said: “The testimony hereinbefore set forth tends to show that the mare was killed upon the railway, and was struck by a locomotive, car or carriage, in operation thereupon, and this court will not question the sufficiency of such evidence, if the jury has been satisfied by it.” And in the McDougall case is the following language: “The evidence was to the effect that the horse was injured upon the track of a railway which was known as the Cincinnati, Hamilton and Indianapolis railroad, a branch of the Cincinnati, Hamilton and Dayton railroad. Prima facie, this indicates a corporation of that name. It was sufficient to raise such an inference. The animal having been injured, as the proof showed, by a train run upon the track of that railroad, the appellant was presumptively liable for the injury.”