delivered the opinion of the court.
The recovery in this ease was for an injury suffered before the constitution of 1890, and the law then in force governs. By it, the defendant prima facie was not liable to its employe for an injury suffered in the service for which he was employed. The gist of the action is negligence of the employer, by failure in duty to the employe, and that the injury resulted from this negligence. It is not enough that negligence of the employer and injury to the employe co-existed, but the injury must have been caused by the negligence; and the fact that injury to an employe occurred after the negligence is not sufficient to show the relation of cause and effect between them. Post hoc ergo propter hoc is not sound as evidence or argument. Nor is it sufficient for a plaintiff, seeking recovery for alleged negligence by an employer towards an em*338ploye, to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. , It must have a better foundation.
There was a fatal variance between the declaration and the evidence in this case, but no objection was made on that ground, and, as an amendment would have been allowable so as to conform the pleading to the evidence, if this objection had been made, it must be held to have been waived, and cannot be'made available here now.
The second instruction for the plaintiff is subject to the criticism that its mention of the death of Cathey, as a result of the accident, may have caused the jury to suppose that the death was an element of damage to be estimated by it.But this might not cause a reversal in a ease where the evidence showed satisfactorily the right of the plaintiff to recover. Such is not the state of this case. The evidence of the plaintiff is wholly insufficient to establish any necessary or even probable connection between the negligence of the defendant, testified of by the witnesses for the plaintiff, and the hurt of Cathey. He may have suffered his injury as the result of the things spoken of, but no man can say that he did, or that it is probable he did. His business was a perilous one, in which the most experienced and cautious are liable, under the most favorable conditions, to suffer injury, and meet death, 'which lurks in a thousand forms, and claims its victims when least expected oftentimes. It is just as probable, from the evidence, that Cathey fell from some one of the many causes that might have caused it, as that he stumbled over the coal or uneven rails or from his pants being caught on a piece of the rail, which was said to project from it at right-angles, which latter is said by counsel to have been the most probable cause of his fall. All is pure guessing, the merest conjecture, as to how the accident was produced, and the evidence for the plaintiff fails to do more than to suggest several ways in which' it might have occurred; but what caused it is unknown, ex*339cept as indicated by what the unfortunate young man said— i. e., “He fell down-between the cars, and the wheels passed over” him. That much is known, and no more can be affirmed, with confidence, as a fact, or as a reasonable probability from human experience in tracing consequence to cause by the light of the evidence produced by plaintiff, on which we have considered the case, without regard to the testimony for the defendant, which, if believed, completely disproves the case made by the plaintiff’s witnesses. They differ among themselves materially, and one might well hesitate to conclude that the truth is discoverable from their testimony as to where the sad mishap took place, and whether precisely at that point there was either coal or splinters from the rail, or depression or unevenness of track, or any other defect, on which to lay the blame of the deplorable misfortune of young Cathey on that fatal night, when, in the performance of duty in the perilous service in which he was engaged, he received a mortal hurt. Rut we have considered the case as if all was proved which the plaintiff’s evidence, accepted as true,-tends to .prove, and, thus viewed, there is a wide chasm between the matters referred to as the cause of the hurt and the injury received. This chasm has no bridge but' conjecture, which is insufficient to maintain a jury in crossing to a verdict in any case. It must, therefore, have been leaped by the jury, moved by sympathy for the dead son and the living, sorrowing father, and incited by the eloquence of counsel dealing with so pathetic a theme. We maintain inviolate the right of trial by jury, and scrupulously preserve the line that marks the distinction between the functions of court and jury, and adhere to the rule that where the verdict is supported by evidence sufficient to maintain it, it should not be disturbed by the appellate court because it takes a different view of the evidence from that held by the jury, and would have given a different verdict, but where, as in this case, after the most careful consideration by us of all the evidence for the plaintiff, giving it all *340full credit, we cannot discover any probable connection between the negligence narrated and tbe injury suffered by Cathey, our duty is to set aside the verdict, which is accordingly done.
Reversed and remanded.