CONCURRING OPINION.
WOODSON, J.I fully concur in the opinion written in this case by Judge Ferriss, prior to his leaving the bench, except as to remanding the cause, but I wish .to add a few observations to what he so ably said regarding the causal negligence of the case.
All of the authorities agree that in order to justify a recovery in an action of this character, the evidence must not only show that the defendant was guilty of negligence, but must go one step further and establish the further fact that said negligence of the defendant was the direct or proximate cause of the plaintiff’s injury, which may be done by direct or positive testimony, or indirectly, by reasonable inferences *48drawn from the facts and circumstances proven in the case.
While the evidence is conflicting as to whether the tender contained splashers and side bearings, yet for the purpose of these remarks I will concede that both were absent and that said absence was negligence on the part of the defendant, nevertheless, I am unable to ascertain from this record how that negligence either caused or contributed to the injury of plaintiff.
Causal Connection. It is a well known fact, as this record discloses, that engines, tenders, and trains also, for that matter, “jump the track” with and without those safety appliances; and while they may j j ¿ i .it e and do m a degree, lessen the liability o± them leaving the track, yet I have never seen or heard of a case where it was either conceded or proven that the derailment would not have happened had the tender been so equipped. It is and always has been more or less a conjecture as to whether or not they ever prevented a derailment, which otherwise would have occurred had they not been present, and especially is that true in this case. All of the undisputed facts in the case strongly point to the contrary. For instance, the plaintiff himself testified that the roadbed was “pretty soft, saridylike,” and that he “sank down into it, . . . and my feet went down in the soil,” . . . but I “didn’t wait to look to see how deep, but I know I went down quite a ways, ■. . . Yes, sir; I know it was good and soft.”
There was other evidence tending to show that the ballast had washed from under the ends of the ties, which left them projecting out in the air.
The plaintiff also in testifying as to this matter said: “The ties were broken and stuck up on the ends; just like breaking them in two, and they stuck up.”
*49Cause of Derailment. This evidence fully and clearly shows the cause of the derailment. The earth was soft, and the ballast was washed from under the ends of the ties, leaving them projecting in the air, and of course left the center of them resting upon the earth or ballast not washed or disturbed; and when the heavy tender and engine backed up and over the track in that condition, the great weight being upon the end of the ties, having no support, they snapped or broke in two at the center, at the points where they rested upon the earth and thereby caused the ends thereof to stick up in the manner described by the plaintiff.
That is the only rational theory disclosed by the record, upon which the derailment could have happened; and that being true, it is perfectly apparent therefrom that neither the presence nor absence of the side guards and splashers mentioned, did or could have added to, caused or prevented the accident.
In addition, the plaintiff and other members of his crew, testified that they examined the engine and tender at the time of the derailment and knew of the absence of said safety appliances, yet they, at that time, never attributed the accident to the absence of said appliances, for they reported to their superior officer that they did not know the cause of the derailment.
■n°case!t Moreover, with no intention of criticising the learned counsel for plaintiff, the whole case, as I view it from the record, is totally destitute of all merit. The plaintiff was in charge of the train, rather ^ie 611 §™.6 an(f tender, and at the time of the accident he and his associates made an examination of the situation to ascertain and report, as was their duty, the cause of the derailment, and after so doing, they made some two or three reports *50to their superior officer, to the effect that they could not discover the cause of the accident; also that no one was injured thereby.
According to the plaintiff’s own testimony, it was something like a month before he discovered that he had sustained any personal injuries whatever in consequence of said accident. At the end of that time he began to discover that he was very seriously injured, so much so that he sued for $35',000, and recovered a verdict and judgment for $30,000.
It is a strange coincident that about the same time he discovered he had sustained injuries, he also began to discover the cause of the derailment of the engine which he claims caused the injury, which at first he charged to the defective condition of the track and railroad bed, but subsequently, he discovered that it was due to the absence of side bearings and splashers on the tender, etc.
When I view this entire case, in all of its bearings, I am fully satisfied that it is totally destitute of all merit, and for that reason I believe the judgment should be reversed and the cause dismissed.