(dissenting). George M. Adkins was killed by the explosion of dynamite in the railroad yards at Jellico, Ky., on the morning of September 21, 1906. The yards there are used ‘by both the Louisville & Nashville Railroad and the Southern Railway; Jel*272lico being the terminal of each road. A. C. Cox, administrator of said Adkins, sued both companies to recover for bis death. He charges that the defendant companies, or one of them, negligently shunted a car against the car containing the dynamite with such force as to cause the dynamite to explode. Each of the companies denied liability, and a trial upon this issue resulted in a verdict in favor of the plaintiff for $7,500. Many reasons are assigned, why the judgment should be reversed, chief of which is that the verdict is flagrantly against the evidence.
This car of dynamite had been shipped from Emporium, Pa., and arrived in the yards at Jellico, over the Southern Railroad, at 8:30 p. m., September 20th. It remained there over night, and at 7:47 on the following morning the explosion occurred. Plaintiff proved by the testimony of several witnesses that they saw an engine shunt a car or cars against the car containing the dynamite, and that immediately or shortly thereafter the dynamite exploded. He also proved by several witnesses that they heard the noise of the impact when a car or oars were shunted against another car or cars, and that shortly thereafter the explosion followed. The defendants insist that explosion was not caused by the shunting of a car against the car of dynamite, but by a man named Rogers shooting into the car with a rifle. They proved by the testimony of several witnesses that this man and others had been shooting into the dynamite car before the explosion occurred, and that just immediately before the explosion he was seen to raise his rifle again as though to shoot. They also proved that a rifle of the make and caliber used by Rogers has sufficient penetrating force to go through a plank of similar material and thick*273ness as the door of the car, and through a dynamite box, and explode 'the dynamite in the box. Several expert witnesses were introduced, who testified that dynamite, when properly packed, could not 'be exploded by' shunting one car against another, unless the coupling of the car was broken and driven into the dynamite box, or, in other words, unless the force of the impact was great enough to wreck the car,-and that even then, unless some metallic substance was driven violently into the dynamite, it would not explode; that they had seen dynamite cars wrecked, and no explosion occur. Defendants’ testimony shows that the dynamite in this ear had been carefully pack ed for shipment after the most approved fashion, and that as packed it was perfectly safe for shipment, and could not have been exploded by the ordinary and usual jar and jostling which a car would receive in being hauled over the road, or by other cars being shunted into the dynamite car with a less degree of force than that indicated. In its shipment from Emporium, Pa., to Jellico, this car had passed over the lines of the Pennsylvania, the Norfolk & Western; and the Southern Railroads, traversing the States of Pennsylvania, Yirginia and Tennessee. During the course of this journey it must necessarily have been hauled by different engines, :and taken out of one train and put into another at least three or more, times. There is no proof whatever that when it reached Jellico the car was not intact and. in perfect condition. It was properly labeled, showing its contents. It appears that a part of this load of dyna ■ mite was to be taken out of the car at Jellico, and the remainder shipped on to another point; and this is the reason given for the.car’s remaining there in the *274yards over night rather than being continued on to its destination.
Complaint is made because this load of highly explosive substances was brought into the yards and permitted to remain over night there without being-guarded. The trial judge was evidently of opinion that this act on the part of the company or companies was, not, in itself, negligence; and in this conclusion I concur, for the proof sho’ws that, as packed, the dynamite was perfectly safe for shipment. Besides, no amount of care on the part of the companies in the handling of the car could have prevented the explosion if it was produced by the rifle shot; and if it was not, the necessity for such care is wanting. As plaintiff’s witnesses did not identify in any way the engine which they said shunted the car that did the damage, defendants undertook to show, from the location of every engine that had been in or about the yards within the hour just previous to the explosion, that it was impossible that a car could have been shunted against the dynamite car, as alleged. They also attempted to show, from the position of freight cars upon the track upon which the dynamite car was standing, that it would 'have been impossible for the explosion to have been produced in the way and manner in which the plaintiff claims it was. In order that the location of the engines and cars, as fixed by the various witnesses, may be understood, it becomes necessary to describe the yards and tracks at some length.
The yards at Jellico lie partly in Kentucky and partly in Tennessee. The northern part is in Kentucky, and the southern part in Tennessee. The Louisville & Nashville Railroad trains, in coming into and going from the yards, use the northern end, and the *275trains of the Southern Railway use the southern end. The surface is comparatively level, there being only a slight dip from either'end of the yards toward the center. A car will stand upon any part of the tracks without the necessity of having the brakes applied. To the east of the depot are two tracks, on one of which is the “cinder pit.” To the west of the depot there are seven tracks, and naming these tracks, going west from the depot, we have, first, the house track; second, the main track; third, the middle track; fourth, the tank track; fifth, the side track; sixth, the sand track; and, seventh and at some distance further west, the Proctor Coal spur track. The car containing the dynamite was on the tank track, not far from the Tennessee State line. Prom the testimony of all of the witnesses it is plain that, if a car was shunted into the dynamite ear, it came from the south; and this is made evident by the further fact that after the explosion no ear or part of a car was found north of the spot where the car of dynamite stood. Defendants proved that just after the explosion there were lour cars on the tank track immediately south of thé hole made by the explosion of the dynamite car. Following the tank track south a distance of ¡about 50 feet, there'were six cars standing upon the tank track. Further south, and beyond the six cars, this track divides. On the eastern portion, which is, in fact, a continuation of the tank track proper, there was a space of 261 feet to one car, then 27 feet to four cars. On the western or spur branch of the tank track, there were three cars, none of which were joined together. That these cars on the tank track were located as claimed by defendants is abundantly proved by their witnesses, and not se*276riously contradicted by the testimony of the witnesses for the plaintiff.
It is argued with great earnestness for the defendants that the number and location of the cars on the tank track and its spur completely refute the testimony of plaintiff’s witnesses as to wbat caused tlie explosion, for none of them say that there were more than three cars ¡attached to the dynamite car, or that more than three cars were shunted into the dynamite car; whereas, by actual count, there were shown to be fifteen cars on this track, south of the wrecked dynamite car, 'figuring those on the eastern end of the tank track, and thirteen cars, counting those on the western end. So that, there must have been not less than thirteen cars pushed by the engine that shunted the car into the dynamite car; whereas, no witness introduced by plaintiff places the number at more than six. There is no conflict in the record as to what engines were in or near the yards within the hour just previous to the explosion. These were the L. & N. engine known as “Doug’s Engine,” L. & N. engine No. 111, the Proctor Coal Company’s engine, Southern switch engine No. 277, Southern engine No. 680, and Southern engine No. 686. These last two named were, extra large freight engines. Defendant’s witnesses testify that these six were all of the engines that had been in or near the yards within the hdur just previous to the explosion. That their testimony upon this point is true is strengthened by the fact that no one testifies to seeing any other engine in or near the yards during this time. The explosion so tore up the track as to render all of the tracks north of the point where the explosion occurred impassable, either by being warped and thrown out of line or else *277by being blocked by earth and debris. Extending south from the yards is a single track, over which any engine leaving the yards would have to travel. The noise of the explosion aroused the railroad men and others at Newcomb, ¡about three miles south of Jellico, and a lot of men started immediately for Jellico on a handcar. They.found the track clear between Newcomb and Jellico; hence no engine left the yards going south after it occurred. Manjr persons walked from the south up this track to the scene of the explosion, and none of them encountered any engine leaving the yards. - As no engine left the yards after the explosion, and no witness testifies to having seen any other about there within the hour next before the explosion, one must conclude that the six engine's above named were all that had been or were there within the time named.
Defendants have undertaken to account for the location of each of these engines. The L. & N. engine known as “Doug’s Engine” was attached to a northbound passenger train which had pulled out of Jellico just a few minutes before the explosion. It is conceded that this engine shunted no car against the car of dynamite; and could not have caused the explosion. The Proctor Coal Company’s engine was standing over on the coal company’s switching track, and, from its position and the fact that it was not then being used, it must be excluded from consideration. L. & N. engine No. Ill is shown by the testimony of witnesses, both for plaintiff and defendants, to have been at the time of the explosion, standing oyer east of the depot near the “cinder pit,” on the track known as the “old man’s track.” It was proven to have been there before the explosion, and was there after
*278th© explosion. Its fire had been ‘‘ drawn, ’ ’ and it was, in railroad parlance, “dead.” Southern switch engine No. 277 had left the yards at about 7 o’clock, and taken a load of empty cars down to the Blue Gem mines, some miles away, and was there at the mines at the time of the explosion, as is shown by the testimony of many witnesses, most of whom are wholly disinterested, so far as any connection with either railroad is concerned, and one of plaintiff’s witnesses testifies to this state of fact also. Southern freight engine No. 680 left the yards with a train of ears at 7:35, or 12 minutes before the explosion, as is shown by the testimony of many witnesses, and at the time of the explosion 'was more than three miles south of Jellico. Eight or ten witnesses testified to seeing this engine with its train of cars near Newcomb at the time they heard the explosion. Southern freight engine No. 686 is shown by the testimony of a great number of witnesses, some for plaintiff and some for defendants, to have 'been on the “cinder pit,” on the track east of the depot. This is a large engine, and had come into the yards from the south some time early in the morning, discharged its train of cars, and had been taken over on ihe “cinder pit.” To get on this “cinder pit” it either had to go through the yards, past the dynamite ear, to the northern limits of the yards, and then back up on the “cinder pit” track, or else it had to go to the southern limits of the yards, and oyer the switch to the turntable, and over the turntable to the “cinder pit” track. While the proof shows that this engine could be passed over the turntable, yet it is quite difficult to have it do so on account of its size. The easy, natural, and usual way to get to the .“cinder pit” is by the northern route; *279but, as the explosion blocked this way, if it was taken to the “cinder pit,” after the explosion, it must have been over the other way. No possible reason is assigned for taking it there after the explosion occurred. No one testifies to having seen it being taken, and it is scarcely possible that it could have been done in the presence of the great number of people attracted to the scene 'by the explosion, and not be observed by some of them. That no one saw it go over to the “cinder pit” after the explosion is' a circumstance in support of defendants' contention that it had gone there before. Plaintiff’s witnesses failed to locate any one of these engines 'at a point other than that fixed by defendants’ witnesses; in fact, plaintiff’s witnesses have contributed ■ much of the evidence which goes to show that these engines were, at the very moment when the explosion occurred, exactly where defendants contend they were.
Plaintiff’s case rests upon the allegation of his witnesses as to how they saw and heard the car shunted into the dynamite car, and defendants’ defense must rest upon their ability to establish, first, that there was no engine in the yards, at the time of the explosion, to have shunted a car; second, that from the location and number of cars on the tank track and its spur, south of where the explosion occurred, no car could have been shunted into the dynamite car unless the engine that did so afterward placed the other cars upon the track as they were found, by count and measurement, to be, and as partially shown by the photographs taken shortly after the explosion they were; third, that the dynamite was so packed that it could not have been exploded by the impact of a car or cars shunted with the force described by *280the plaintiff’s witnesses, even if all that they say is true; and, lastly, that the rifle that was used was of such penetrating force that its hall would pass through the ear and box, and into and explode the dynamite.
'This is a large record, and a great many witnesses have testified. Much of their testimony is merely cumulative, and upon points not necessary to the determination of tlie real questions in issue. It is only when the evidence of each witness is carefully read, and his opportunities for obseivation considered, in connection with the physical facts, which are not controverted, that the truth as to how the explosion occurred can be ascertained. With the record so considered and analyzed, it is clear that no engine shunted a car or cars into the dynamite car, for the simple reason that not one was in a position to do so. The witnesses who say that a car was shunted into the dynamite car are so overwhelmed with the physical facts shown in the record, and other facts proven —not by a preponderance of the evidence, but by the evidence of many witnesses undisputed — that the value of their testimony is destroyed. Their statements as to what caused the explosion are so completely refuted by the facts as shown by the record that their testimony cannot be accepted as the basis for a judgment to rest upon. Excuse for their being mistaken is not wanting. Their minds, if not warped by personal interest, have become confused in trying to bridge the chasm made in the trend of current events by the terrible catastrophe, and, while they no doubt recall various movements of engines on that day, they have evidently not done so in the natural order in which they occurred. No doubt they saw *281engines shifting ears around and through the yards on that fateful morning, "and heard them hump together as they were being so switched and shifted and coupled up and put through the various maneuvers necessary both to the breaking up of a train. after it came into the yards and the making up of one preparatory to its leaving. Such scenes and sounds were neither strange nor new to them. Most of them lived in or near that town, the terminus of two great railroad systems, where many trains came and went every day. There was nothing in such sights or sounds that would impress their minds sufficiently to enable them to recall -any particular one. It is common knowledge that by daily association with trains, and being in and around railroad tracks and yards, one becomes so accustomed to them that he sees the trains without paying any attention to them or their movements, and hears the noises incident to their operation almost without being conscious of it; and, in the absence of anything unusual in the movement of a train, it would be exacting almost the impossible to expect one, some time thereafter, to describe its movements with any degree of accuracy.
There was no reason for observing the movements of the engines, or any one of them, on that morning until after the explosion, and then the witnesses, in seeking for the cause, would naturally remember that they saw an engine shifting cars about the yards, or heard cars being shunted together with considerable, or more than usual, force. Several witnesses say they saw an engine shunt a car or cars into the dynamite car, and the explosion followed. They differ as to the kind of engine. Some say large; others small. Some say one car; others several. So, also, *282as to the several witnesses who say they heard the force of the impact of the car that was shunted into the dynamite car. They differ as to the length of time that elapsed between the shunting of the cars' together and the explosion. Some say that it occurred immediately; others that a considerable time elapsed. Clearly the shunting which was heard did not cause the explosion; for, if the force of the impact had been sufficient to cause the explosion, it would have followed the impact instantaneously, and the noise of the impact would have been lost in the-sound of the explosion. If plaintiff’s witnesses are correct, then after the explosion those in charge of the engine that shunted the car or cars into the car of dynamite deliberately and immediately set about to manufacture a defense. There in the midst of the greatest calamity that had ever befallen that community, within sight and hearing of their dead and wounded friends and comrades, they must have dropped the cars along the tank track, as the evidence shows they were, and then stealthily spirited the engine out of the yards, and all of this must have been done while others were so busy that they failed to observe the movements of this engine; for out of the numbers of witnesses who have testified no one saw any engine making’ any such movements. Had any such thing taken place, surely it would have been seen by some one, and the fact that it was not is strong evidence that it did not occur.
The defendants have demonstrated to a practical certainty that the bullet fired from the Rogers rifle caused the explosion. He was in no wise connected with either of the defendant companies, and they are not answerable for the result of his conduct. *283Courts are ever reluctant to disturb the finding of a jury, and should decline to do so unless palpably against the evidence. Still, when the ends of substantial justice would be defeated by permitting the judgment to stand, no court should hesitate to set it aside. The case at bar presents such a condition. By the overwhelming weight of the evidence' it is clear that the explosion was not caused by the shunting of a car into the dynamite car, or by any other act of negligence on the part of defendants or either of them, but by a wholly independent agency, one over which defendants, nor either of them, had any control whatever, and for which they are in no wise responsible.
The judgment should be reversed. For this reason,
I dissent, and Judges Hobson and Barker join me. Nunn, J.Appellants’ counsel insist that they should be granted an oral argument in this case on the question discussed in the last 11 pages of the manuscript opinion, to wit, as to whether the railroads were guilty of actionable negligence in failing to exercise reasonable or any care to protect the public from injury when they left the car loaded with the explosives in the yards unguarded. As this ques tion was not referred to in the oral argument had before the case was decided, it not being necessary to a determination of the case, as the action was tried out in the lower court on the sole question as to whether the explosion occurred by reason of shunting cars against the one loaded with the explosives, or as to whether it was caused by a shot fired from a small rifle, we have concluded to withdraw that part of the opinion, and it is so ordered.
Therefore the motion for oral argument is refused, and the petition for rehearing is overruled.