On Petition to Rehear.
A petition to rehear has been filed in this cause based upon the theory that the opinion of the court handed down on a former day concedes that there is evidence that the deceased was proceeding to perform the unlawful act of swinging a moving train at the time of his injury, and that, under the rule announced in Milne v. Sanders, 143 Tenn., 603, 228 S. W., 702, and in other cases to the same effect, this court is bound by the finding of the trial judge. It is true, as stated by learned counsel, that this court will not disturb the finding of the trial, judge on a question of fact in a workman’s compensation case, where there is evidence to support such finding. But, as stated *569in the original opinion, the record in this case presents no conflict of evidence, and it is for the court to construe and give legal effect to the undisputed facts, and in so doing we have been constrained to reach a different conclusion from that arrived at by the learned trial judge. It may be remarked that the conclusion only of the tidal judge appears in the record and there is nothing to indicate what view he took of any particular evidence.
If the quotation made by learned counsel from the opinion is taken in connection with other expressions in the context, it will be seen that it was not the intention of this court to concede that there was evidence sufficient, and of a. character to call for recognition as such, that the deceased was a party to a plan to perform this unlawful act, or was in course of performing it. A careful reconsideration of the record confirms us in the opinion that the evidence does not sufficiently establish the fact that Moore Avas hurrying to catch a train. The inference or deduction ingeniously argued by counsel is too remote to entitle it to recognition as probative evidence. Stress is laid by learned counsel upon use in the opinion of the language, “the evidence does not sufficiently establish the fact,” etc., and it is insisted that this language suggests and improperly recognizes the quantum of evidence rule. Not at all. Evidence is insufficient to establish a fact when it fails in the legal sense to establish the fact to such a degree or extent as is necessary to entitle such evidence to judicial consideration. It is not of sufficient strength, vitality, or potentiality to support a conclusion, or afford basis for a judgment. It does not rise to the dignity of effective or probative evidence.
*570As to the reckless conduct of deceased, dwelt upon in the brief of learned counsel, in subjecting himself unnecessarily to danger in crossing the yards, little can be added to what has been plainly said in the original opinion. However careless, and even reckless, this conduct, it cannot be said to have been willful or intentional, so as to bar recovery under the Compensation Act. It is not within the purpose of this act to dip into the domain of contributory negligence. No degree of negligence bars. Having found that the deceased while effecting his egress from his place of work over the tracks of the defendant company was yet within the protection of the act, his right to compensation' can be cut off only by proof of “willful misconduct or intentional self-inflicted injury.” This is not established by the evidence in this case.
The petition must be dismissed.