(dissenting)-
This accident was caused solely by plaintiff slipping on a tin can. That caused him to lose his balance and prevented him from finishing his ascent of the car ladder to the safety of the side of the car. Plaintiff himself eliminated any question of close clearance, unevenness of the track, or inadequate lighting. He testified that if he had not slipped on the can there was nothing to prevent him from climbing on the car and riding out safely. He said that he knew that cans were in the area where he was injured and that he saw them; that “ * * * there was a certain amount of glare to them.” The appendix excerpts from his testimony comprise forty-eight pages. Under all of the direct and redirect examination and cross and recross-examination by the two defendants, the net result of plaintiffs story is as above outlined.
From the court’s charge the only negligence which could be attributed to the can company was the condition of the premises. If, however, the condition of the premises was found to be negligence, but the jury believed testimony to the effect that the railroad had been notified of that situation then, instructed the court, “the railroad cannot hold the can company for any negligence * * Since both the can company and the railroad were found negligent it follows that the jury decided that the can company was at fault with respect to the condition of the accident area and that the railroad was to blame because of the track lay out, uneven roadbed or inadequate lighting. The verdict, under the circumstances, of necessity absolves the railroad from any blame arising from the presence of cans and pieces of tin on the ground.
Foster, in testifying that the sole cause of his hurts was his stepping on and slipping on the can, was not giving his opinion of what happened. He was detailing the simple fact. The jury was not bound to believe him but if it had not, and its verdict indicates that it did, there was no other proof in the record of the proximate negligence of either defendant. Foster’s testimony was the only evidence of what had caused him to fall. Assuming it could be inferred that generally the lighting was inadequate, the roadbed uneven or the clearance too close, there is no evidence that one or all of those conditions had the slightest direct relation to Foster’s fall.
This appeal should be decided on the facts established at the trial below, not on a conjecture concerning possibilities which were never tied into the accident at all. The complete immediate reason for Foster’s injury was the slipping on the can. The jury concluded that the presence of the can amounted to proximate negligence by the can company. The latter concedes, as of course it must, that if it “ * * * was solely and exclusively negligent”, it alone is liable for plaintiff’s damages. The rec*732ord shows that particular kind of liability inescapable.
I would reverse that p'art of the district court judgment which allowed judgment in favor of the railroad and against the can company for one-half of the modified verdict and I would direct that judgment be entered in favor of the railroad and against the can company for the full amount of plaintiff’s modified verdict against the railroad.