Oglesby v. Missouri Pacific Railway Co.

ROBINSON, C. J.

This is an action for damages growing out of injuries received by plaintiff in December, 1892, while in the employ of defendant railway company as brakeman on one of its freight trains running between Kansas City and St. Louis. The contest, between the parties hereto has had quite a long and eventful history. In a former suit between the same parties, growing out of the same occurrence, the case came here then, as now, on defendant’s appeal from a judgment in favor of plaintiff, at which time, opinions by four members of this court were written. When the judgment in that suit, Oglesby v. Mo. Pac. Ry. Co., reported in 150 Mo. 137, was reversed and remanded, as the result of the diverse views expressed by the different members of the court, and the cause was returned to the circuit court of Bates county for rehearing, plaintiff dismissed that suit and began anew in his home county of Johnson the present suit, this last action, however, differing from the first in this particular only, that now, no act of negligence is charged to defendant on account of the rapid rate of speed of the train at the time plaintiff received his injuries, as was done in plaintiff’s former petition filed; but the absence of that averment from the present petition makes the consid *286 eration of the effect of the existence of that fact, in so far as it has been given as plaintiff’s version of the cause of the wreck that resulted in his injury, of no less consequence than it was at the former hearing of the original suit, when that allegation of negligence was contained. In the present action the grounds of negligence charged are :

‘ ‘ That defendant negligently furnished and placed and allowed to be placed, operated and used in said train, at said time on said trip a car numbered 7919, with the initials ‘ U. L. ’ thereon, which was at the time unfit for service, unsafe, old, worn, and out of repair, and the timbers of which were decayed and rotten,worm-eaten and doty: That at the time defendant knew, and by the exercise of ordinary care and prudence might have known, of the condition of said car and that'it was unsafe, unfit for service, out of repair, old, worn, rotten, decayed, worm-eaten, and doty. That at said time, on the said 11th day of December, 1892, by reason of the old, worn, decayed, rotten, worm-eaten, doty and unsafe condition of said car and because the same was out of repair as aforesaid, and while said train and cars were being operated by defendant as aforesaid on its said line of railway at a point west of what is called Little Blue Switch in Jackson county, Missouri, the said ca.r broke and the said car and train were wrecked and thrown from the track, and plaintiff by reason thereof and while in the line of his duty as brakeman on said train in the employ of defendant as aforesaid, and without fault on his part, was then and there thrown to the ground and track and the cars thrown upon him, by reason of which his right leg was crushed,” etc.

On the appeal in this case, as when the case was here before, the controlling controversy is over the question whether upon all the facts developed the case should have been submitted to the jury. Other minor questions have been presented by the defendant on this appeal, but as none of them in our judgment are suffi *287 eient to effect a reversal of the judgment found, if that judgment is predicated upon facts from which the jury-had the right to make a determination, they need not be mentioned.

What then, are the facts in the case as shown and established by all the witnesses? Though the defendant offered a demurrer to the testimony at the close of plaintiff’s case, when that demurrer was overruled, it did not choose to stand thereon, but gave to' the court and the jury its testimony, and we must consider it now along with that of the plaintiff’s, as one whole, and if from all the facts shown, the case was one to go to the jury it is not the province of this court, on appeal, to interfere therewith, or to disturb the judgment based thereon.

The testimony on the part of plaintiff tended to •show that this “IT. L.” car left Kansas City loaded with 30,000 pounds of flour on the morning of December 11, 1892, in a train of 18 cars bound for St. Louis; that this “U. L.” car was the first car of the train and was fastened to the rear end of the tender by means of an iron link and pin; that plaintiff was the forward one -of three brakemen in charge of the train and that his position at the time of the wreck was upon the fifth car from tbe engine that was used to pull the train; that when the train reached a point near what is called Little Blue Switch in Jackson county, about seven miles out from Independence, while running down a steep grade on the road and around a sharp curve, it was wrecked and plaintiff was found under the car upon which he was riding with his right leg broken and crushed, and otherwise bruised and mangled. Plaintiff’s testimony tended to- show that this “IT. L.” car, as it is called, was old, and that its longitudinal sills were rotten, worm-eaten and doty, and when observed after the wreck they were found to have been broken square in two about ten feet back from the forward end! of the ear. The testimony on part of defendant tended *288 to show that this “U. L.” car was sound, in good condition and comparatively new; that it was built to carry 60,000 pounds, while at the time of the wreck it. was carrying only 30,000 pounds of barreled flour; that, it had been inspected at Atchison, Kansas, and Kansas City, Missouri, and that no defects were noticed, and that at the time of the accident the train was not running more than 20 or 25 miles an hour. It was stipulated by the parties that this “U. L.” car was received in Atchison, Kansas, December 5, 1892, having come over defendant’s road from St. Louis loaded with 31,-000 pounds of nails, and that it remained in Atchison on defendant’s premises unloaded until December 10,. 1892.

While in general the testimony in the present case is substantially as it was on the former appeal of the case between the same parties, reported in 150 Mo. 'supra, and the statement of the facts on the former appeal might have been adopted as the statement of the facts of this case in so far as they went, a few new facts Avere brought out at the present hearing, and the testimony of several witnesses called by plaintiff was developed with more distinctness upon the question as to the character and extent of the defects appearing in the broken sills of this “U. L.” car, which will be noted below.

Of the new facts brought out in the present case that were not made to appear when the case was here on its first hearing, one was that this “U. L.” car was observed to be sagged in the center some two or three inches as it passed Independence station, a distance of six or seven miles from where the train in which it was hauled was Avrecked a few minutes afterwards. Several witnesses, some called by the plaintiff and one called by the defendant, in answer to the question, what this sagging of a car in the center two or three inches would indicate? gave it as their opinion that such *289 a condition would indicate that the car was weak in some of its parts, and that it needed to be repaired.

Two witnesses, fellow brakemen on the train with plaintiff at the time of the accident, and the only eye witnesses to the occurrence of the event who testified at the trial as to the condition of this car immediately preceding and at the time of the wreck, one testifying in behalf of plaintiff, the other called by defendant, said that this “U. L.” car was yet whole after it had left or jumped the tracks and was running upon the ties of the roadbed and before it turned over or broke down upon the track. There was also testimony at this, as at the other trial of the case, showing that one or more of the steel or iron rails of this track were discovered to be broken in two, and very badly out of shape and bent when the wreck was viewed, and that the track generally, under the wreck, was badly torn up and out of place. The testimony also disclosed the facts to be that of the 10 or 12 wrecked cars, all were more or less mashed up and broken, and that several of them were more badly broken up than this “IT. L.” car, which plaintiff now claims was the cause of the wreck. The engineer and fireman of this train both testified that the first thing they knew of anything going wrong with their train was that the wheels of the tender and engine were off the tracks and running upon the ties and that as they turned to see what had become of the train they discovered it in a heap, piled upon either side of the track back of them a distance of 100 feet or more, except about one-third of the forward end of this “IT. L. ” car and the forward trucks under it, which remained fastened to the tender just back of them. That the wheels of the trucks under that part of this “IT. L.”, car, that remained fastened to the tender, as well as the wheels of the trucks of the tender and engine (except the small wheels of the forward truck of the engine), were off of the iron rails of the tracks, and that the *290 wooden cross ties over which they had run for a considerable distance back from where the engine and tender had been brought to a stop, were observed to be cut and bruised as if by the flange of the wheels of the engine and tender.

Though the plaintiff omitted from his petition filed in this case, the allegation that this “U. L.” car was broken down and caused the wreck on account of the rapid and dangerous rate of speed at which the train was being run at the time of the accident, as he had alleged in his first petition filed, he was made to say on cross-examination in this case, that he had said and thought the train was going too fast, and was being run at a rate of speed that was dangerous when the accident occurred, and that he thought the train in consequence of its speed would go into the ditch. The plaintiff also said that when the train was running down the steep grade upon which it wrecked, the steam from the boiler was not turned off, but was being used on the engine.

While at the former hearing of this case, the writer was inclined to the view (then presented with much earnestness by counsel for defendant) that the plaintiff had not shown as charged in his petition, that the sills of this “U. L. ” car that broke in two, were doty or worm-eaten, other than as those defects were made to appear from the breaks in the sills themselves, which ordinary inspection would not have revealed before the break occurred, in the trial of the present case, the testimony upon the question of the defects in the sills, and the extent and character of those defects was gone into more fully than at the first trial of the case, and several witnesses called by plaintiff, who, made an examination of the wreck within a few minutes after its occurrence, testified that the sills of this “U. L.” car which they found broken in two upon the track, were decayed, doty and worm-eaten, and that this defective condition of the sills could be readily seen (except on the two' outside *291 sills that were painted), for four or five feet on either side of the break in the sills, as well as at the point of the breaks, and that same could be readily observed by anyone making an examination of the car standing 6 or 8 feet distant from it, 1 am how of the opinion that at the present hearing of the case, the plaintiff offered ample testimony, if believed, to authorize the jury to find for him on the allegation of his petition that the sills of this “IT. L.’’ car were defective, and that by the exercise of ordinary care and inspection their defective condition could have been known to defendant, if upon all the testimony in the case, there were facts or circumstances shown, calling for the determination of a jury upon the remaining issue in the case, that this car by reason of its defective condition, broke down upon the tracks and caused the wreck of defendant’s train, upon which plaintiff was riding at the time of receiving his injuries.

"What then are the facts of the case upon this last issue to justify its submission to the determination of a jury? That the plaintiff was' badly injured by the wreck that occurred, is sadly too true, but as to the cause of the wreck, as to the averment that this “IT. L.” car broke down upon the track and thereby caused the wreck of the train upon which plaintiff was at the time riding, there is a total absence of fact in this entire record, or of facts from which the inference may fairly or reasonably be drawn, that the breaking down of this car upon the tracks was the proximate cause of the wreck that resulted in plaintiff’s injury.

In fact, if the testimony from the mouth of plaintiff himself, to the effect that he thought this train would be ditched on account of the dangerous and rapid rate of speed at which it was being run down grade with steam on, at the time of the accident; or if the testimony of the other two eye witnesses to the occurrence, plaintiff’s two fellow brakemen (one called by plaintiff and the other called by defendant) to the effect that this “ILL.” *292 car “was whole when it left the track and the damage to it was caused afterwards,” is given any consideration, we must conclude that the proximate cause of the wreck' of this train was something other than the breaking down upon the track of this “U. L.” car on account of its defective sill timbers. If the train upon which plaintiff was working was wrecked on account of the dangerous and rapid' rate of speed at which it was being run by the engineer in charge thereof, then plaintiff has shown himself not entitled to recovery even though the sills of this “U. L.” car were confessedly defective, and were found to have broken in two after the car left the iron rails of the track upon which it was designed to run.

If this “U. L.” car jumped the track while it was yet in perfect condition, and was pulled over and along the cross ties on the road bed before it turned over, or was broken in two and fell down upon the track, as the brakeman on the train, called by plaintiff, and the one called by defendant, to narrate the facts as seen by them, said it did, and as the bruised condition of the wooden cross ties under and immediately back of this wrecked “IT. L.” car clearly indicated the fact to have been, then the proximate cause of the wreck of this train was not that this car broke in two and fell down while being run upon the track, but the cause was that this car had for some reason jumped the track, or that the tracks had spread and let its wheels through upon the cross ties, or had for some other cause unsuggested by witness, left the track on which it was designed to run, and was broken down by being pulled over the rough and uneven surface of the wooden cross ties. All the positive testimony offered by plaintiff upon the question as to the manner of the occurrence that led to the wreck, not only failed to establish the allegation of his petition, but absolutely disproved their existence if believed, and we think the physical manifestations of the wreck itself are no less convincing upon this proposition, than the *293 declarations of the eye-witnesses of the occurrence, however short all these facts may yet be of furnishing the information by which the true cause of the wreck may be determined.

If this “U. L.” car did jump from the rails of the track before it broke in two, or if it was let down upon the cross ties of the roadbed, because of a spreading of the iron rails forming the track upon which the ear was. designed to run, then the fact that this car at the time had doty and worm-eaten sills, became a matter of no concern in this case, for the twofold reason: first, because there is nothing in the existence of doty or worm-eaten sills in a car, so long as the car remains whole and unbroken, to cause it to jump a track upon which it is being pulled, or that would cause, or have any tendency to cause, the wheels of such a car to leave more readily a. track that had been spread too wide for its trucks, than if the sills had been absolutely sound and perfect; and in the second place, if this car jumped from the iron rails forming the track, or if for any reason its wheels fell through and down upon the wooden cross ties of the roadbed when the train was being run at the rate of twenty or twenty-five miles an hour down a steep grade and around a sharp curve in the track, a wreck was inevitable, whether the sills of this car were sound or defective, and the condition of the sill timbers of the car and the manner of their breaking in two are to be considered as mere incidental facts of the wreck resulting from some primary original cause to be yet ascertained. Cars are not constructed to withstand the strain and force to which they are subjected under such conditions. Good sill timbers and bad sill timbers, in the cars of a train running at the rate of speed this train was then going, when the train for any reason leaves or jumps the track, are alike broken and smashed into splinters, as the physical condition of most of the cars of this train, as well as the “IT. L.” car, clearly demonstrate. If it is once recognized that this “IT. L.” car *294 was off of the iron tracks and running upon the wooden cross-ties when it was yet whole, how it was torn up or broken in two when afterwards examined, is to be studied as a mere incidental result of the wreck, and throws no light upon the inquiry as to the cause thereof.

But it is said for respondent that the situation and condition of this “U. L.” car upon the track tells its own story of the cause of the wreck, independent of and contrary to what his witness, Hessler, said upon the subject, and contrary to plaintiff’s first version of the cause of the wreck as he determined it from the top of the car upon which he was riding at the time of the occurrence. If, then, resort is to be made to the doctrine of res ipsa loquitur, to show the existence of this last essential averment of fact of plaintiff’s petition, as plaintiff was compelled to do in the present trial after he repudiated and abandoned as untrue not only his own original judgment as to the cause of the wreck (the rapid rate of speed of the train down grade on a curve with steam on), but all the positive testimony regarding the occurrence as given by his eye-witness Hessler, it is certainly not proper that we confine the inquiry to the simple story told by this ‘ ‘ U. L. ” car itself standing-alone and disassociated with all other features of the wreck, but we should at least view and study the situation and condition as shown by the entire wreck and all the surroundings, and ascertain, if we can, from these, the full story of the wreck and the cause that led thereto if possible. Not only this “U. L.” car but all others of the 10 or 12 cars that were found piled upon the tracks hack of this car, broken and piled up, some five or six of which, were as badly or 'more jammed and broken up than this “U. L.” car, upon which counsel for plaintiff now seek to fasten the sole cause of the wreck, must be called to bear witness if we may expect even a possible correct disclosure of the cause that led to the wreck. Not only these wrecked and broken ears, but the condition of the broken and bent rails of the *295 track under 'these ears, as seen by the witnesses called to reproduce by verbal photograph the situation to the jury, must be studied; and the fact that the iron rails of the track were found badly disordered and spread apart in places wide enough to permit the wheels of the trucks of the cars to drop down upon the wooden cross-ties of the roadbed, and the fact that the wheels of the tender and engine of this train (except the two front wheels of the engine) were also found off the track a hundred feet or more distant down the road from these wrecked cars, and also the fact that the wooden cross-ties along the track for some distance from where the engine and tender stopped, as also for several feet back from where this “U- L.” car was broken down, were found to be cut and bruised as if by some heavy object running over them, and all other conceded and well recognized facts of the situation must be taken into account, if the manner of the occurrence of the wreck and the causes that led thereto, is expected to be determined from the physical facts of the wreck itself, by any kind of a fair conjecture even; and if the story as told by the consideration of the one feature or condition of the wreck, which may now be suggested by plaintiff, as the cause thereof, is out of harmony and irreconcilable with that told or indicated by the consideration of other conditions and features thereof equally as obvious and quite as suggestive of a different or contrary cause, that might have. brought on the wreck, the court should act as upon the irreconcilable story of any single witness who is called to establish the existence of any essential averment of a petition, treat it as if nothing substantial had been shown in the case. Under such circumstances there is nothing for the determination of a jury. To permit a jury to enter the field of conjecture under such circumstances, to say which of these physical conditions they would consider and which they would reject, would be no less unreasonable than to permit a jury to take a case for determination where an eye-witness to the occur *296 rence who had been called by plaintiff to prove the averment of his petition, after first telling what he had seen in line with the averments of the petition, had, when asked by the defendant to repeat what he had seen and the manner of its occurrence, made an exact contrary statement.

Upon the testimony of a witness to antagonistic and irreconcilable statements of. a fact, one tending to sustain the allegations of a petition, the other to disprove it, no one would contend for a moment that the case was one for the determination of a jury. Until a witness can determine for himself just what he saw or did not see, a jury is not warranted in making the determination for him. Under such circumstances the court should dispose of a- case as if the witness had not spoken; as if plaintiff had offered no proof upon that averment of his petition. So here, if the conditions and the appearance of a part of this wreck (to which plaintiff has been driven as his only availing witness, to establish the averments of his petition) might reasonably indicate when standing alone, as plaintiff now contends the appearance and position on the track of this broken “U. L. ” car does, that it broke in two and fell down upon the track and thereby caused the wreck which resulted in his injury, there was yet no warrant for the jury taking these facts and from them alone making a finding in accordance with plaintiff’s present theory as to the cause of the wreck, when other features and conditions of the wreck disclose a state of facts which as clearly indicate that the wreck must have occurred in a different manner, and could not have occurred, as respondent contends the appearance of this “U. L.” car upon the track might and does indicate, if considered alone. The court under such circumstances should act as upon the irreconcilable testimony of any single witness offered to prove the existence of any given act of negligence — tell the jury that plaintiff had failed to make out his case. If the wreck itself, that is, *297 if all the broken and mangled cars of that train, and the ■condition of the tracks and roadbed under the cars and the fact of the engine being off of the iron track in advance of this “TJ. L.” car, is to be relied upon to tell the cause that led to the wreck, there should certainly be exacted of all these features of the wreck so examined, as of any witness called to establish the existence of the same fact, that they tell one uniform and consistent and reconcilable story.

If the conditions and appearances of this “U. L.” car when considered alone might indicate, if it might suggest, or if we may use the term, if it might tell one story when considered by itself and independent of the •other features of the wreck, of how the wreck may have been brought about; and if another feature of the wreck when studied alone tells a different story of how the wreck might have taken place, and what was its cause, and still another feature of the wreck would indicate that it must have occurred from an entirely different ■cause, some of which causes suggested would render defendant liable and others not, what was plaintiff’s authority for selecting the one feature of the wreck he did to the exclusion of all others, or why did he not take the condition and appearance of some one of the other 8 or 10 broken and shattered cars of that wreck, or why did he not consider the feature of the disordered condition of the iron rails of the track, under this wreck, or the condition of the bruised and battered wooden cross-ties at that point or any one of a dozen or more features of the wreck, all of which were as open to the view as the condition of this “IT. L.” car?

If the truck of the engine used to pull this train, jumped from the iron rails of the track on that occasion (and according to every witness who spoke upon that subject, they did at some time during the progress of the wreck) and if it was due to the rapid rate of speed at which the train was being run down grade and around a sharp curve in the road with steam on (and *298 this was plaintiff’s first opinion as to the canse of the wreck, as he was able to observe it, from the top of one of the cars of the train) and if the engine pulled or jerked this “U. L.” car off after it upon the wooden cross-ties where the car then broke in two and fell down upon the track, the primary cause of the wreck that injured plaintiff was that the locomotive engine first jumped, or, for some cause, left the iron tracks upon which it was designed to run. The broken condition of the sill timbers of this “U. L.” car, as that of the broken condition of the timbers of the other eight or ten wrecked and smashed up ears of the train, under such circumstances, should then also be considered as mere incidents of the wreck, and not looked to as the cause thereof. Or if this “U. L.” car itself jumped from the iron rails of the track upon which it was running to' the" rough and uneven surface of the wooden cross-ties of the roadbed, on account of the dangerous rate of speed of the train, before the engine and tender left the track, or if it left the iron rails of the track on account of their disordered and disturbed condition (a feature of the wreck plainly observable to every witness who spoke upon the subject), and was broken in two and fell down upon the tracks on account of the unusual strain to¡ which it must necessarily have been subjected by being-pulled over and across the wooden cross-ties while it was out of line with the engine and tender in front, and the car in the rear, to which it was attached by iron links or fastenings, the fact that the sill timbers were found to be doty, worm-eaten, rotten and broken in two, are to be considered as incidental conditions seen in a catastrophe inevitable from some prior efficient cause. Or if this ‘ ‘ IT. L. ” car jumped from the iron rails of the track upon which it was designed to run, or fell through the iron tracks to and upon the wooden cross-ties of the roadbed for any cause or causes known or unknown, and was pulled over the rough uneven surface of the wooden cross-ties at the rate of 20 or 25 miles an hour, *299 while it was yet in perfect condition and before it was broken in two and fell down upon the tracks, as plaintiff’s only eye-witness to the occurrence says it did, and as the marks on the cross-ties clearly indicate the fact must have been, the plaintiff must fail in his cause of action as at present brought.

Or if the battered and bruised condition of the wooden cross-ties for forty feet or more back of where this ‘ ‘ IT. L. ” ear was found in the wreck, is studied, a story is told of what must have occurred at the wreck that absolutely disproves respondent’s present theory of the cause of the wreck, and is quite in harmony with the story told by plaintiff’s witness Hessler, to the effect that this “17. L.” car had jumped from or fell through the iron rails of the track to the wooden cross-ties and was running upon them before it broke in two and fell upon the track. It would be a fair and reasonable presumption and one which the law might permit to be indulged from the sight of this wrecked “ 7J. L.” car, and the bruised and battered condition of the wooden cross-ties, for a distance of 40 feet or more back of where said car was found broken down upon the track, to say, that either this ‘ ‘ U. L. ” car or the engine and tender in front of it, or all of them, had jumped from the iron rails of the track to and upon the wooden cross-ties, and thus cut and bruised them with the partially sharp flange of their wheels, before the “U. L/’ car broke down upon the tracks, for after this car broke in two and the sills under the rear portions thereof fell upon the track, every circumstance in the case points to the fact, and plaintiff claims the facts to be, that this rear portion of the car moved forward only five or six feet upon the track before it was brought to a complete stop (evidenced by the marks upon the roadbed and ties, made by these broken sill timbers plowing over them for that distance after the car broke in two and dropped down upon the track).

As said before, if this “U. L.” car or the engine *300 and tender in front of it, did for any canse jump from or leave the iron rails of the track upon which the train was running, before this “U. L.” ear broke in two and fell down upon the tracks (as the bruised condition of the wooden cross-ties clearly indicate the fact must have been) the cause of the wreck did not take place as plaintiff asserts, but is to be attributed to that fact rather than to the doty and decayed sill timbers of the “U. L.” car that were found broken in two in the wreck. The condition of the sill timbers of this “TJ. L. ” car and its position upon the track, as that of all the broken timbers in all other of the wrecked cars, became as mere incidental facts seen in a wreck.

When a physical condition or fact shown is alone relied upon to prove the existence of a certain other fact or facts asserted as the basis for a cause of action (as plaintiff was driven to do in this case, after rejecting and repudiating as untrue the oral statement of his only eye-witness to the occurrence, his fellow brakeman Iiessler, who said that this “ U. L. ” car broke down after it jumped or left the track, and after discarding his own first impression as to the cause of the wreck, the rapid rate of the train’s speed on a sharp down grade curve in the road), the fact asserted and sought to be proven must be one which uniformly, regularly and naturally precedes the existence of the facts shown. It is not enough that we may say, the condition shown has a tendency to prove, or to suggest, the prior existence of the fact asserted and sought to be proven equally with other facts as reasonable and readily suggested to the contrary, and particularly is that so, where some of the conditions shown might indicate the happening of the wreck from a cause or causes for which the defendant would not be liable equally as readily as for a cause or causes for which it would be liable.

But as before said,, when every feature and condition of this “U. L.” car and the entire wreck as detailed by all the witnesses, is considered, whether sepa *301 rately or collectively, we have yet nothing that can be said to furnish more than material for conjecture as to what was the primary or proximate cause that led to the wreck, that resulted in plaintiff’s injury; and this surmise or conjecture, now made in behalf of plaintiff (for such only can it be characterized) not only fails to coincide with plaintiff’s first opinion as to the cause of the wreck, but is in absolute conflict with the view as expressed by the only two' eye-witnesses of the occurrence who testified in the case.

For plaintiff in this case the error has been made throughout of assuming instead of proving the existence of the very fact assigned as his cause of action. Thus it is said: “certain it is if the timbers of this car [the “U.L.” car] were rotten they were liable to break from that fact. Therefore given the rotten timbers, the broken car and the wreck, what more is needed to make out a prima facie case for plaintiff?” And again it is said, “If the timbers of this ‘U. L.’ car were doty and worm-eaten, if they broke in two, dropped down, plowed into the roadbed and formed a barrier against which the rear cars of the train were thrown, the jury needed no expert testimony to assist them in finding the cause of the wreck.” Had plaintiff been a passenger upon defendant’s train riding in a place assigned to him by defendant’s authorized agents, the fact of the. wreck, and the existence of the decayed sill timbers of this broken down “U. L. ” car would have been ample to have raised the presumption of negligence on the part of defendant, and properly could have been declared to have made out a prima facie case for plaintiff, but not so when his relation to defendant was shown to have been that of employee to employer, and when he was at the time of receiving his injuries, one of the train crew in the actual management and conduct of this wrecked train. To maintain an action against defendant it was necessary for plaintiff to allege, as he did, the particular cause of the wreck, and it was necessary that he prove *302 the cause as alleged either directly by witnesses who saw the occurrence, or by proof of facts and circumstances from which the existence of the alleged cause might fairly and reasonably be inferred. Granting that the broken sill timbers of this “U. L.” car were found to be doty and worm-eaten, as plaintiff’s witnesses who examined them immediately after the wreck say they were, they tell no more the cause that brought on the occurrence of the wreck that resulted in plaintiff’s injury, than the broken sill timbers, seen by those same-witnesses and many others, under the eight or ten other wrecked and broken cars of that train. Each tells the story that some unusual and violent energy was applied to effect their destruction, but what caused the application of that unusual force to be- exerted as it was, the-one car is alike as silent as the others. The broken, decayed sill timbers of this “U. L.” car and the broken sound timbers of the other 8 or 10 cars of the wreck, are alike but incidents found in a wreck, but neither of itself nor all together tell a story that would warrant more than a conjecture to be made therefrom. Plaintiff having failed to establish by adequate proof the existence of the essential averment of his petition, that the wreck of the train upon-which he was injured was caused by the breaking down upon the track of this “U. L.” car, the judgment must be reversed, and it is so ordered.

Marshall, Burgess and Fox, JJ., concur; Brace, Gantt and Valliant, JJ., dissent.