
    WEAVER v. THE BALTIMORE & OHIO RAILROAD COMPANY.
    Statute of Limitations ; Stare Decisis; Railroads; Railroad Bridges ; Evidence ; Witnesses ; Postal Clerks ; Negligence.
    1. Whether to a suit in this District by a foreign administra-trix, for damages for the death of her decedent, which occurred in West Virginia, the statute of limitations of that State or the statute of limitations of this District, applies, quaere.
    
    2. Whether this court will consider itself bound by a decision of the General Term of the Supreme Court of this District, in a case which after a trial had in accordance with such decision, is appealed to this court, quaere.
    
    3. In a damage suit against a railroad company, where the question arises as to whether d certain railroad bridge was of a safe width, the refusal of the trial court' to admit testimony to show the usual width of bridges upon another railroad, is not error, especially where testimony is in showing the width of modern railroad bridges generally.
    
      4. If a witness called to establish a certain fact, testifies contrary to the expectations of the party calling him, it is not reversible error for the trial court to refuse to allow him to be asked by such party whether he did not testify differently on a former trial of the same case, where there is no other evidence to prove the fact thus sought to be established.
    5. The extent to which a party calling a witness who deceives or disappoints him, should have the right to examine him as to former contradictory statements, ought to be left largely to the discretion of the trial court, subject only to review in case of manifest error.
    6. When an injury to a railway passenger occurs through some accident to the means of transportation, which is under the management of the carrier’s employees, and which, if they exercise ordinary care, cannot ordinarily happen, it affords reasonable evidence, in the absence of explanation, from which negligence on the part of the carrier may be inferred.
    7. But while a railway postal clerk is to be considered as a passenger, it cannot be presumed from the mere fact of his being killed while en route by striking his head against a bridge post while catching a mail bag, that his death was caused by the negligence of the railroad company.
    8. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and not themselves be presumed.
    No. 245.
    Submitted April 10, 1894.
    Decided June 4, 1894.
    HeariNG on a bill of exceptions by the plaintiff in an action for damages for death by alleged wrongful act.
    
      Judgment affirmed.
    
    The Court in its opinion stated the case as follows:
    Appellant, Harriet R. Weaver, as the administratrix of the estate of Cecil F. Weaver, deceased, under letters of administration issued by the Orphans’ Court of Cecil county, Maryland, instituted this suit against the appellee on June io, 1890, in the Supreme Court of the District of Columbia, to recover damages for the negligent killing of said Cecil F. Weaver, at a point on its line in the State of West Virginia. Defendant pleaded not guilty and limitation of one year. Plaintiff demurred to the plea of limitation, and was sustained. by the court in special term, and upon defendant’s appeal to the General Term this judgment was affirmed. Plaintiffs intestate was a railway postal clerk in the service of the United States and engaged in handling mail upon a postal car, on defendant’s railway running between Grafton, in West Virginia, and the city of Baltimore. The car was a limited express train, which usually ran at the rate of about 45 miles per hour. He had been on this route for about three years andi possibly longer.
    John H. Anderson, chief clerk, was in the same car with Weaver,- and was called as a witness by plaintiff. It was Weaver’s duty to catch the mail bags in passing postoffices where the train did not stop. These bags - are hung on a crane near the track and caught in passing by a contrivance attached to the door of the postal car. A rod or bar, some few feet in length, is firmly attached to the side of the car, running across the opening of the door, about the height of the waist of an ordinary man standing on the floor of the car. Attached to this is a long, bent arm, called by the witness a “goose neck,” which is worked by a crank from within the car. When not in use, the “ goose neck ” hangs down under the rod to which it is attached. When a bag is to be caught the crank is pulled down on the inside and throws the “ goose neck ” in position. The neck of the mail bag is driven into the small part of the “ goose neck ” and hang.s there until removed by hand. The crank is turned back, which brings the bag partly within the car. The bags were ordinarily about two and a half feet long. On the afternoon of June 19, 1888, the train was going east, and it was Weaver’s duty to catch the mail bag at Great Capon. The place was about 600 yards west of the Capon Bridge. Anderson and Weaver were at one end of the car when Weaver started to set the machine for catching the bag. There was a large case for holding mail between the place where Anderson stood and the catcher, which prevented him from seeing Weaver; but he heard him set the catcher and ■catch the bag. Weaver not returning with the bag, Ander.son went to the place and found him lying dead on the floor. He was lying rather on his right side, with his left foot outside the door. The portion of his head behind the ears was completely torn away; his face was uninjured. His head had come in contact with the bridge post, for marks were found thereon clearly showing this. No one saw him at the time of the collision. The bag was left in the catcher until arrival at Sir John’s, about five miles away. The witness Anderson said that it was not more difficult to remove it than usual. Ordinarily the bag is pulled in with the hand and removed with little trouble, though it sometimes becomes jammed.
    Alexander Leeds, a witness for the plaintiff, testified that he had formerly been a postal clerk on the same run and rode in the same car a few days later. He saw and described the mark on the bridge-post as a “ sort of half oval.” In order to ascertain the distance from the catcher to the post, witness on several occasions in passing rolled up a newspaper and held it firmly against the handle of the crank which turned the catcher, so that it would strike the post in passing, and the force of the blow would mark the paper. He did not measure the. paper, but estimated it at about eight or nine inches; the handle or crank protruded about an inch, or an inch and a half from the outside of the car. The distance from the inside to the outside of the door is probably five or six inches. He had been catcher on that route for 13 years, and constantly handled the mail bags. Sometimes the bag became jammed and had to be pulled and jerked; one would have to stand up against the bar and pull back in the direction the train was moving. Witness had sometimes put his head “ a good deal farther out than that bridge would need to be.” There are two tracks at this place and the train was on the south one. There is a curve from south to north, about where the bag was taken, which this witness thought terminated about the end of the bridge, but could not remember with any accuracy. The rail of the track on the south side of the curve is raised above the level of the north side. This witness also said that the bag when caught by the catcher would hang about six inches outside the car; sometimes, owing to the way the bag might be twisted, it would protrude ten, twelve or eighteen inches. He had time to catch the bag at this station and pull it in before reaching the bridge where he made the measurement with the newspaper.
    Edward T. Benton, a witness for plaintiff, had also been a postal clerk on this route. He described the manner of catching and taking in the bags about as Anderson and Leeds had done. When difficult to remove the bag, one “would have to lean over the catcher and if he was not thinking about anything, he might get six or eight inches further over — a good ways over the catcher. The taller the man the more likely he would be to go further over.” Weaver was about five feet eight or nine inches tall. On cross-examination the witness said that the best point to take hold of the bag was as near the iron as possible, and that it would not be necessary to put the hand out more than three or four inches. The following questions and answers were propounded to and answered by the witness:
    Q. “If it was only necessary to put your hand out three or four inches, what necessity was there to put your head out?” — A. “Well, you need some purchase; a man working at a mail bag in that way couldn’t very well do anything by standing in the car and reaching out. He would have to have a purchase. He would have to get over the catcher in this manner in order to have a purchase.”
    Q. “ But he could keep his head inside of the car, could he not?”- — A. “ Of course, it is not supposed a man is knowingly going to expose himself more than is possible. I have done it myself frequently.”
    Q. “You knew you were doing a dangerous thing when you did it?” — A. “I knew I was in danger; but a man is always in danger.”
    Q. “ A man who puts his head outside a car is always in danger, is he not?” — A. “ I should think so.”
    Q. “ My question was this: If a man could not get a sufficient purchase at that distance of three or four inches without putting his head outside of the car?” — A. “ I don't think he could use his hands to any advantage in extricating a pouch unless he got his shoulder or head or something out over the catcher.”
    Q. “ Would its be necessary for a man to put his head out nine or ten inches?” — A. “I don’t know that it would. I don’t think it would.”
    Q. “Would it be necessary for him to put his head out eight inches?” — A. “ I don’t think it would be necessary for him to do it.”
    Q. “Would it be necessary for any man to do it?” — A. “No, I don’t think it would.”
    Redirect examination:
    Q. “ If a man reaches over to take this bag out of the catcher with his head over the bar any distance, has he any control over the distance to which his head would be thrown out by reason of the lurching of the car?” — A. “ No, sir.”
    Q. “ Might he not, by a lurch of the car, be thrown out 8 or 9, or 10 inches?” — A. “Yes, sir. When a car is moving the swaying of the car has a good deal of effect on a man standing on his feet.”
    William J. Smith, for plaintiff,
    said that he had made accurate measurements on the ground about five years before, of which he had memoranda. From tire middle of the curve coming east it was about 1,200 feet to the bridge. The station was over 600 yards. The curve ended about “ 150 yards before reaching the bridge, or 100 yards at any rate.” He saw the mark on the post where Weaver’s head had come in contact therewith; from the edge of the post to the outer edge of the mark was exactly four inches. The bridge was 22 feet 8 inches wide “ in the clear.” From the center of the outside rail of the track to the post was three feet two inches. The inside rails of the two tracks were six feet apart. From the center of the wheel of the largest size postal cars to the outside of the car is twenty-four inches. The car on which Weaver was killed was one of the largest size. These cars are as wide as the widest coaches or Pullman sleepers.
    Fred. Thompson, on behalf of plaintiff,
    testified that he was a civil engineer and had been engaged chiefly in bridge engineering. The usual width of double-track railroad bridges is about 27 feet and sometimes 28 feet. The distance between the center of the rail and the nearest part of the bridge should be not less than four feet six inches. “ We do not deem it safe it make it less than that, and it is not safe.” Cross-examined, the witness said that he had built bridges on the Richmond & Danville road. Old bridges on that road are not so wide, but they are being renewed and are made wider when renewed. The “ Long Bridge ” over the Potomac is not so wide. Many old bridges are not, but all modern bridges are. The danger in less clearance is that persons, children, etc., might reach their hands or their heads out yfith the possibility of their being hit by the bridge, etc. The danger is only in this respect; the cars can pass safely enough on the narrow bridge. Re-examined, he said, cars are made wider than formerly. “ When the bridge is on a straight line, theoretically the car is not supposed to sway at all, but of course it does a very little. When a bridge is put on a curve the distance from the rail to the nearest part of the bridge is made wider than you would on a straight line to take into account the swaying of the car on that curve. It is made wider according to the degree of the curve. If the bridge is beyond the point where they start to elevate the outer rail of the curve — if it is beyond that point, the bridge is not made wider. . . . The elevation of the center rail of a railroad continues at least 150 feet beyond the point where the curve commences. It does not start to give the car a tip in that direction in going around the curve just at the time it gets to the curve. It is started back on a straight line at least 150 feet, so that when the car reaches that point 150 feet from the curve, it is then on a straight line, and it has been brought down from that point to a gradual elevation.”
    
      There was some other testimony on behalf of the plaintiff on the question of damages, which it is not necessary to state. Upon the conclusion of plaintiff’s evidence the defendant moved the court to instruct the jury to return a verdict for the defendant, which was done. Plaintiff’s motion for a new trial was overruled, and she has appealed to this court.
    
      Mr. R. B. Lewis, Mr. Albert Constable and Mr. B. S. Minor for the plaintiff in error.
    1. The plaintiff in error ought to have been allowed to prove by the witness, Smith, as proposed, the width of the Pennsylvania Railroad Company’s bridges, in order to show what is considered reasonable and proper width by other 'companies. Abel v. Canal Co., 128 N. Y., 666; Daniel v. R. R. Co., L. R. 3 C. P., 224.
    2. The question proposed to be asked of witness Anderson ought to have been allowed. He had been examined upon a former trial of the case and his testimony given here in the particular sought to be inquired into was at variance with what it had been there. Mel/iuishv. Collier, 15 L. R. Q. B., 878, and 1st Greenleaf on Evidence (2d ed.), Secs. 442 (note 2), 443, 444 (note 1) and 444a.
    3. There were only two issues before the jury: the burden ■ of proof as to one (the defendant’s negligence) resting upon the plaintiff; .the burden of proof as to the other (the decedent’s 'contributory negligence) resting upon the defendant.
    . In support of the issue resting upon her, the plaintiff was bound to prove some negligent act or omission of the company, which caused, or materially contributed to cause, the decedent’s death. There was evidence to show negligence on the part of the defendant, or from which the jury could, as reasonable men, find it. A bridge post being 16 inches nearer the side rail than it should be is certainly strong evidence towards proving some negligent act or omission on the part of the company which caused or materially contributed to cause the decedent’s death, and when we look at the proofs in this case, a post 7, 8 or 9 inches from the side of a car, the close proximity caused by the swaying of the cars rapidly in motion (45 miles an hour), just leaving a curve, the evidence is conclusive of negligence; or, such that would raise a doubt in the minds of reasonable men and cause them to differ, and would make it absolutely the province of a jury to find the facts, in the light of the surrounding circumstances. R. R. Co. v. Ives, 144 U. S., 417 ; R. R. Co. v. Powers, 149 U. S., 45 ; R. R. Co. v. Stout, 17 Wall., 657 ; R. R. Co. v. McDade, 135 U. S., 554; R. R. Co. v. Converse, 139 U. S., 469.
    The burden of proof of Mr. Weaver’s alleged contributory negligence rested on the defendant. Now, the consequence of the burden of proof upon this issue resting upon the defendant is, that the case upon that issue must go to the jury unless there is an admission of a fact which conclusively establishes contributory negligence. The presumption of a fact in law that men use due care, and do not heedlessly rush into danger, and the fact that the burden of proof lies upon the defendant, is sufficient to carry the case to the jury so far as that issue is concerned. And if Mr. Weaver met his death by having his head outside of the car, it is a fact not sufficient in itself to repel the presumption of due care, or such a fact that reasonable men must draw the same conclusion — i. e. that he was negligent. R. R. Co. v. Ives, 144 U. S., 428; R. R. Co. v. Weiss, 87 Pa. St., 447.
    A judge can never decide affirmatively, that a party upon whom rests the burden of proof has proved the fact. All he can say is negatively, that the party who has the burden has failed to offer sufficient evidence to prove the fact. R. R. Co. v. Slattery, L. R. 3 App. Cases, x 175 ; Flynn v. Mass. Benefit Ass., 152 Mass., 291.
    4. There was evidence before the jury that Mr. Weaver was killed while in the performance of his duty, by his head coming in contact with the post of one of defendant’s bridges, which was improperly, negligently and dangerously constructed, 16 inches closer to the tracks than is considered safe by experienced and competent railroad bridge-building experts. Laing v. Colder, 8 Pa. St., 479. Mr. Weaver was not a servant of the company, but a passenger, toward whom the defendant owed the duty of reasonable care — that high degree of care which is due a passenger. Seybolt v. R. R. Co., 95 N. Y., 562; Collett v. R. R. Co., 16 Q. B., 984; Nolton v. R. R. Co., 15 N. Y., 444; R. R. Co. v. Horst, 93 U. S., 291; Hammond v. R. R. Co., 6 S. C., 130; R. R. Co. v. Lockwood, 17 Wall., 357; R. R. Co. v. Henderson, 51 Pa. St., 315; Patterson’s Railway Accident Law, 144, 200, 215 ; R. R. Co. v. State use Wiley, 72 Md., 36.
    5. In regard to the issue of contributory negligence, the burden of proof in regard to which rested upon the defendant, the most that the defendant could claim is that it was entitled to have that issue submitted to the jury. The presumption was in favor of the plaintiff, that he was, at the time of the accident, in the exercise of due care, and that the injury was caused wholly by the defendant’s negligent misconduct. This is the rule of the Supreme Court of the United States and many of the States. See Beach on Contributory Negligence, Sec. 426, and the case referred to in Note 1 (2d ed.); R. R. Co. v. Ives, 144 U. S., 417, 428; Coasting Co. v. Tolson, 139 U. S., 551, 558, and cases there cited ; Donohue v. R. R. Co., 91 Mo., 357; R. R. Co. v. Patton, 31 Miss., 156; Deans v. R. R. Co., 107 N. C., 686; 2 Thompson on Negligence, 1157; Cooley on Torts (1st ed.), 675; 4 Amer. & Eng. Enc. Law, Tit., “ Contributory Negligence,” 30, and authorities cited in Note 1. It is only when the facts are unchallenged, and are such that reasonable minds could draw no other inference or conclusion from them than that the plaintiff was, or was not, at fault, that it is the province of the court to determine the question of contributory negligence as one of law. Beach on Contributor}'Negligence (2d ed.), Sec. 447, and cases referred to in Note 3; R. R. Co. v. Ives, 144 U. S., 417 ; R. R. Co. v. Harmon, 147 U. S., 571 ; R. R. Co. v. Harmon, 18 D. C, 255.
    Reasonable care toward Mr. Weaver was the duty of the company. Does the evidence disclose the performance of this duty by the company so indisputably, that because Mr. Weaver’s head was outside of the car by the lurching or swaying of the train, thoughtlessly or otherwise, the court can say that the decedent was unquestionably guilty of contributory negligence? We say not. The case of Spencer v. R. R. Co., 17 Wis., 503, was a case where a passenger received an injury to the arm, while riding in one of the defendant’s cars with his elbow projecting out of the window. The court, at page 509, said:
    “ Whether the plaintiff was guilty of negligence in placing his arm in the window in the manner he did or whether his so doing so contributed to produce the casualty, it was eminently a question of fact to be determined from all the circumstances and facts of the case, as it appears to us.”
    At page 511 the court further said: “It was the foity of the jury to decide the question of carelessness, as we think, and not for the court to say as a matter of law1 that if the arm was outside to any degree, the plaintiff’s conduct was such as to prevent him from maintaining this action.” See also Laing v. Colder, 8 Pa. St, 479; R. R. Co. v. Kennard, 9 Harris, Pa., 203; R. R. Co. v. Pondrom, 51 Ill., 333; Farlow v. Kelly, 108 U. S., 288; Kane v. R. R. Co., 128 U. S., 96, 128; R. R. Co. v. Striker, 51 Md., 70; Continental Company v. Stead, 95 U. S,, at page 168.
    Again, the burden of establishing contributory negligence is on the defendant, and the law presumes that the plaintiff does his duty. So, if it was Mr. Weaver’s duty to keep within the car, the law presumes that he did so. R. R. Co. v. Weiss, 87 Pa. St., 447 ; R. R. Co. v. Schum, 107 Pa. St., 8.
    The fact that Mr. Weaver’s head was beyond the line of the car does not rebut this presumption, unless it could not have been there without his negligence. But it is perfectly consistent with the fact of its being out, that it got out by the lurching of the car, or by his foot or hand slipping as he pulled the mail bag, which afterwards was found to have been fixed firmly in the catcher.
    
      
      Mr. G. E. Hamilton and Mr. M. J. Colbert for the defendant in error.
   Mr. Justice Shepard

delivered the opinion of the Court:

i. The administratrix appointed in the State of Maryland has instituted this suit under the authority of tibe act of Congress which permits foreign administrators and executors to bring suits in the courts of the District of Columbia in the same manner as if their letters had been granted therein. 24 Stat. at Large, 431.

The right of action is claimed under the statute of West Virginia, within which State intestate’s death occurred. It is conceded that this statute is substantially like that of the District of Columbia on the same subject, save that by the latter the action must be brought within one year, while by the former the time is two years. Plaintiff first brought suit in Maryland, where it was decided that for want of similarity between the statutes of the two States it could not be maintained. 72 Md., 145. Owing, doubtless, to the delay caused by the litigation in Maryland, suit was not filed here until after the expiration of one year from the death. The plea of limitation of one year was overruled in the special term, and this was affirmed on appeal taken to the General Term, which held that the time within which the suit might be brought is a part of the right of action, and that the provision of our statute limiting the time to one year must be regarded as applying to causes of action arising in the District, and not as a limitation upon all actions of that nature. On the second trial this question was regarded as concluded by the judgment of the General Term and was not again raised. We are now asked by one side to reopen it, while our right to do so is denied by the other. The reconsideration asked for involves the question of the proper construction of the two statutes, as well as how far we are to be considered as bound by the decision of the General Term in a case which, after a trial had in accordance therewith, has been a second time appealed. These are grave and difficult questions, and as their decision is not necessary in the view which we have taken of the case on other points, we will dismiss them with the remark that both are to be considered as open for future discussion and determination.

2. The appellant’s first assignment of error is upon the refusal of the court to permit her to prove the usual width of bridges upon the Pennsylvania Railway. There was no error in this. Had there been, it was more than compensated by the admission, without objection, of the evidence of the witness Thompson, who testified to the width of modern bridges upon railways generally, and in addition gave the opinion that the bridge in question was not of the proper width, all of which went uncontradicted.

Railway bridges should be so constructed, in all respects, as to be reasonably proper and safe for the purposes of their ordinary use. Any failure of this duty, through the direct agency of which an injury occurs, would be negligence. But a railway company is not bound to adopt a plan of construction observed by railways generally, much less one in practice by any one company in particular. What is customary or usual among others in the same business has sometimes been held to be a pertinent circumstance to aid the jury in determining the duty of one with respect to the same matter. Daniel v. R. R. Co., L. R. 3 C. P., 224; Abel v. Canal Co., 128 N. Y., 666. Some well reasoned cases, however, have held that where negligence is the foundation of the action, a general usage even is not admissible for the purpose of showing that it does or does not exist. Bailey v. R. R. Co., 107 Mass., 496; Hill v. R. R. Co., 55 Me., 438, p. 444-5 ; City of Champaign v. Patterson, 50 Ill., 61; Hibler v. McCartney, 31 Ala., 501; R. R. Co. v. Evansich, 61 Tex., 3. We are not called upon here to decide between these two opinions.

3. By the second assignment of error, the plaintiff brings for review a ruling of the court made in the examination of the witness, John H. Anderson, who was the only companion of the intestate in the postal car at the time of his death. The question arose in this way: Anderson was called as a witness by plaintiff and testified as set out in the preliminary statement of the case. In reply to plaintiff’s question, he said that the mail bag was not jammed in the catcher so as to require any unusual force to remove it. This was a material question in the case. No other witness was called to testify to this particular fact. Plaintiff, claiming surprise at his answer, and expressing a desire to refresh the memory of the witness, offered to interrogate him in regard to statements made on a former trial. This was refused, but no exception was noted at the time. Near the close of the trial he was recalled for further cross-examination by defendant. Plaintiff then propounded the following question: “Did you not state on a former trial of this case that the mail bag was wedged into the catcher so hard that it took a great deal of force and two men to get it out?” Upon defendant’s objection, the court refused to permit the question to be answered, on the ground that, as the witness had no adverse interest and was not one — as a witness to a deed or a will, etc.— whom the law compelled plaintiff to call, this method of examination was not proper. It may be added also that there is nothing in the record tending to cast suspicion upon the integrity or good faith of the witness unless it be such as might be implied from his failure to testify with respect to this one circumstance, just as he may have done upon a former trial. Some of the well established exceptions to the general rule against permitting a party to discredit or contradict his own witness are stated by Mr. Greenleaf in his justly esteemed treatise on the Law of Evidence, but this case is not within them, i Gr. on Ev., Sec. 444-5. It would be extremely difficult if not impossible to frame a rule covering all cases in which this question may arise. Unquestionably a corrupt or treacherous witness should not be permitted to destroy or cripple the case of a party who, in good faith, relies upon his truthfulness, without some redress. But, at the same time, it is equally just and fair not to permit-a fact to be given to the jury in an indirect way which cannot be proved in any other. In general, we think it safe to say, if a witness, to the well-founded surprise of the party calling him, testifies to a fact which tends to destroy his right of action or defense, as the case may be, or contradicts evidence which he is reasonably relied on to corroborate, the party should be permitted to ask him if he had not made different statements on a former occasion; and in extreme cases, in the event of his denial, it might be permissible to prove by others that he had made them. But where a witness is called to make*1 out a case and fails to testify to a material fact or circumstances as hoped or expected by the party calling him, it would subserve no useful and legitimate purpose to permit the fact to be thus brought before the jury which could not be proved in any other way. Melhuish v. Collier, 15 Q. B., 878; S. C., 69 E. C. L., 878, a case specially relied' on by plaintiff, is a very different one to this. It was an action for assault and battery. The witness on an examining trial had testified to facts which made out a case for plaintiff. On the trial of the action for damages, she not only failed to testify as before, but stated facts which completely exonerated defendant.. She also testified that she had been suborned by plaintiff at the trial referred to. It was held proper to permit the plaintiff to ask her if she had not made a contradictory statement on the other trial, and also to introduce evidence to rebut the charge of subornation. Patteson, J., said that while it was proper in such case to permit the question to be asked, it would not be proper to allow the contradictory statement to be read for the purpose of contradicting her. He said, “ There is a distinction between asking questions of a witness in the box as to statements he may formerly have made, and calling other witnesses to say, in contradiction of him, that he made such statements.” Coleridge, J., seemed to think it proper, under some circumstances, which do not exist, however, in this case, to permit a witness’s recollection to be refreshed by calling his attention to different statements formerly made.

In this case, to permit the witness to be asked if he had not made a different statement upon a former trial would not have answered the purpose of plaintiff without the further permission to contradict him with that statement; nor would the admission of both have served any useful purpose, because the court would have been compelled to tell the jury that the former statement, if made, could not be considered by them as evidence of the fact which it contained; and there was no other evidence, whatever, to the same fact. Moreover, we think that the extent to which a party calling a witness who deceives or disappoints him should have the right to examine him as to former contradictory statements, ought to be left largely to the discretion of the trial judge, subject to review only in cases of manifest error. We find no such error in this instance.

4. The remaining question presented by the record is: Did the court err in directing the jury to find a verdict for the defendant? Following the rule laid down by the Supreme Court of the United States, we said, in the case of R. R. Co. v. Carrington, ante,p. 101, “ The right to have the facts determined by the jury ceases only when but one reasonable view can be taken of the evidence, and of its every intendment, and that view is utterly opposed to the plaintiff’s right to recover.” By that rule the evidence in this case must be tested.

It is conceded that the plaintiff’s intestate occupied the legal relation of passenger to the defendant and was entitled to a similar degree of care. What .constitutes culpable negligence or want of proper care varies necessarily with the surroundings and circumstances of each particular case. The care, therefore, due a regular passenger, whose place is inside the car, may be less, with respect to outside dangers, like the one in this case, than that due the intestate, if he was compelled, in the regular performance of his duties, to operate at times on the outside of the car, though ordinarily his work was on the inside; or than that due a train employee whose duties required him at times to be on the outside of the cars and exposed to danger from structures near the track. So, a train employee whose duties might require him to stand upon the roof or platform of a car and expose himself to contact with structures dangerously near the track might recover for an injury so received, when a passenger, riding there, in violation of a regulation of the carrier, and hurt by reason of the exposure alone, would be deemed guilty of contributory negligence and thereby barred of recovery. Ordinarily, when sitting in his seat on the inside of the car, it is the duty of the passenger not to expose himself to outside dangers, and when hurt through a plain violation of this duty, without special circumstances of justification or excuse, it has been quite generally held that he could not recover for injuries so received. Whilst the plaintiff’s intestate is to be considered as a passenger, it cannot be presumed, from the mere fact of his having been killed while en route, that' the injury was caused by the negligence of the defendant. That he was found dead in the car, killed by coming in contact with the bridge post, does not of itself shift the burden of proof to the defendant. The burden is always upon the plaintiff to make out his case. Where negligence furnishes the cause of action it must be proved by the party alleging it. There are some cases in which it has been said that the law presumes negligence on the part of the carrier from the mere happening of an accident to a passenger. This is not a strictly accurate statement of the law. The most that can properly be said is that when an injury occurs through some accident to the means of transportation, which is under the management of the carrier’s employees and which, if they exercise proper care, cannot ordinarily happen, it affords reasonable evidence, in the absence of explanation, from which negligence may be inferred. Transportation Co. v. Downer, 11 Wall., 129; Inland and Seaboard Coasting Co. v. Tolson, 139 U. S., 555 ; R. R. Co. v. State, use of Mahone, 63 Md., 135 ; Curtis v. R. R. Co., 18 N. Y., 543 ; R. R. Co. v. Gibson, 96 Pa. St., 83 ; R. R. Co. v. Robinson, 73 Tex., 277 ; Scott v. London Docks Co., 3 H. & C., 596.

In this case, there was no derailment of the car, no injury to it, or the track, no accident of any kind affecting it, or that could have affected any passenger inside the cars. There is no legally established fact upon which to found the presumption or inference of negligence on the part of the defendant. The sole foundation for the inference of negligence exists in the fact that intestate was instantly killed by coming in contact with the post of a bridge which is not as wide as is now customary in the construction of new bridges. As we have heretofore said, it created no presumption of negligence in defendant that it did not rebuild and widen its bridge because other railways were adopting a greater width. Nor was any such presumption created by the testimony of the expert who said it was dangerous to build bridges as narrow as the one in question to passengers who might protrude their heads or limbs from the windows of the cars. The duty of defendant to its passengers was to have its bridges wide enough for the passage of its widest cars with safety to passengers who did not unreasonably expose themselves to danger. This bridge had been used safely for some years, how many does not appear. The mail bag had been caught at the same place and in the same manner regularly for years, and no injury or damage had ever been occasioned by the proximity of the bridge post. The attention of the postal agents who performed these duties seems never to have been attracted to any special danger at this place. There could be no injury without an exposure of the head, say from io to 14 inches beyond the outside line of the car, which was from four to six inches from the inside line. Ordinarily, it appears, the bag was caught and removed without any necessity of exposure of the head or body of the person who attended thereto. Had there been proof to the effect that the removal of the mail bag from the catcher, under the ordinary and usual conditions, necessitated the exposure of the head of the agent, it could be presumed that this condition or state of affairs was known to the defendant, and that it risked the consequences of injury to the intestate, to whom it owed the care due to a passenger with this condition superadded. But, as we have seen, the ordinary rule was to the contrary.

It was made to appear, however, that the bag was occasionally jammed, or wedged, in the catcher, and when this happened the postal clerk in charge might have to expose ' his head somewhat beyond the outside line of the car, though it was not made to appear that the necessary exposure, under this exceptional condition, was ordinarily sufficient to bring the head of the person in contact with the post of the bridge. The contention of the counsel for appellant is thus stated on their brief: “The mail bag had got tightly wedged in the catcher, and Mr. Weaver was endeavoring to get it out; in doing this he had to use .both of his hands to pull the bag, and thus his head was toward the front of the train; while making this effort in this position, his head, by the lurch of the train (the track being curved at or near the bridge), or by the slipping of his hands or feet, got beyond the line of the car and was struck by the post of the bridge." Hence, it will be seen that something in addition to the wedged condition of the bag and the extra force required to remove it is necessary to account for an exposure sufficient to bring the head in contact with the bridge post, and this is claimed through the “lurch of the car,” or “the slipping of the hands or feet.” Without regard to this, however, it is sufficient to say that there is no proof that the bag was wedged in the catcher; on the contrary, the only evidence in the record is that it was not. The assumption that it was “ tightly wedged ” is not only a presumption or an inference from the mere fact of the killing, but is opposed to the direct evidence. The further inference is then drawn from this inference that the injury resulted from the bridge being too narrow, and that it was negligence in the defendant not to have anticipated the necessity and provided against it. Had there been actual proof that the bag was wedged in the catcher so as to require extraordinary exertion to remove it, thereby probably necessitating the exposure of the head of the intestate, which, contributed to by the “ lurch of the car,” or the not unreasonable “ slipping of the feet or hands,” may have caused his death, the question of negligence should have been submitted to the jury. It would have been error to take it away from them. Unquestionably, a satisfactory conclusion may be reached through reasonable presumption or inference from established facts, as well as by direct evidence. But conjecture is not sufficient. Inferences must be from established facts, not from other inferences. U. S. v. Ross, 92 U. S., 281; Manning v. Ins. Co., 100 U. S., 693. In the first of these cases the court said: “ Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliably drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a: fact, the circumstances must be proved and not themselves presumed.” After quoting from Starkie and Best in support of the position, Mr. Justice Strong, who spoke for the court, said further: “A presumption which the jury is to make is not a circumstance in proof; and it is not, therefore, a legitimate foundation for a presumption. There is no open and visible connection between the fact out of which the first presumption arises, and the fact sought to be established by the dependent presumption.”

In this case, as we have seen, the wedging or jamming of the bag so as to require unusual force and exertion to remove it, is the indispensable foundation from which the negligence of the defendant is to be inferred. Without this the plaintiff had no case. The unfortunate occurrence through which the intestate lost his life must, therefore, be regarded as one of those accidents, not unusual, for which no legal responsibility can be traced. The plaintiff having failed in this respect, the court did not err in directing a verdict for the defendant; it became his duty so to do.

There being no error iu the record, the judgment must be affirmed; and it is so ordered, with costs to the appellee.  