
    John Fitzgerald, as Administrator of Thomas Fitzgerald, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Negligence— Railroads—Death op Freight Brakeman — Low Bridge — Insufficient Evidence as to Cause of Death. In an action for damages for the death of a freight brakeman. alleged to have resulted from the negligence of the defendant railroad company in failing to provide the warning signals required by statute (L. 1884, cli. 439, § 2) to protect employees on top of cars from injury by a low bridge, held, that the essential fact that the death was caused by the bridge was not established by evidence that the deceased was standing apparently in good health on the top of a car just before the train passed under the bridge, which was from four feet seven inches to six feet three inches above the tops of the ears, and that immediately thereafter lie was found lying on top of the same car, near the center, in a dying condition, without the production of, or the effort to procure, further evidence that he died from violence instead of disease, such as evidence tending to show a wound or a bruise upon his person.
    
      Fitzgerald v. N. Y. C. & H. R. R. R. Co., 88 Hun, 359, reversed.
    (Argued October 26, 1897;
    decided November 23, 1897.)
    Appeal from a judgment of the General Term of the Supreme Court in the fourth judicial department, entered October 9, 1895, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    The nature of the action and the facts, so far as material, are stated in the opinion. (See, also, 59 Hun, 225, and 88 Hun, 359.)
    
      G. D. Prescott for appellant.
    The verdict in favor of the plaintiff was against the weight of evidence, and was such that only one inference could he drawn therefrom by an honest mind, and the court could have directed a verdict for the defendant or granted a nonsuit. (Wilds v. Hudson R. R. R. Co., 24 N. Y. 433; Smith v. N. Y. C. & H. R. R. R. Co., 19 Wkly. Dig. 230; Gibson v. E. R. Co., 63 N. Y. 449; Hickey v. Taaffe, 105 N. Y. 26; Anthony v. Leeret, 105 N. Y. 592; De Graff v. N. Y. C. & H. R. R. R. Co., 
      76 N. Y. 125, 128; Cahill v. Hilton, 106 N. Y. 512; Powers v. N. Y., L. E & W. R. R. Co., 98 N. Y. 274; De Forest v. Jewett, 88 N. Y. 264; Sweeney v. B. & J. E. Co., 101 N. Y. 520.)
    
      Hadley Jones for respondent.
    The negligence of the defendant was clearly established. (McRickard v. Flint, 114 N. Y. 222; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522; S. & R. on Neg. [4th ed.] §§ 13, 187, 467; Willy v. Mulledy, 78 N. Y. 310; Clemence v. City of Auburn, 66 N. Y. 334; Cooley on Torts, 654; Hover v. Barkhooff, 44 N. Y. 113; Heeney v. Sprague, 11 R. I. 456; Couch v. Steele, 3 El. & Bl. 402.) The question of contributory negligence was properly submitted to the j ury. (McRickard v. Flint, 114 N. Y. 222; Halsey v. R. R. Co., 12 N. Y. S. R. 319; Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Bucher v. N. Y. C. & H. R. R. R. Co., 98 N. Y. 128; S. & R. on Neg. §§ 187, 354; Salter v. U. & B. R. R. R. Co., 88 N. Y. 49; Bell v. N. Y. C. & H. R. R. R. Co., 29 Hun, 560; Booth v. B. & A. R. R. Co., 73 N. Y. 38; Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 547; Dana v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 639; Sheehan v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 332; Flike v. B. & A. R. R. Co., 53 N. Y. 551; Plank v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 607; Wallace v. C. V. R. R. Co., 138 N. Y. 302.) Whether the defendant was guilty of negligence in failing to guard this bridge and whether it was unguarded; whether the deceased knew its position, or might have ascertained it by the exercise, of ordinary care, and whether he was guilty of contributory negligence, were all questions of fact and properly submitted to the jury. (Wallace v. C. V. R. R. Co., 138 N. Y. 302; B. R. R. Co. v. Rowan, 104 Ind. 88; Newson v. N. Y. C. R. R. Co., 29 N. Y. 383.)
   Vann, J.

This action was brought by an administrator to recover damages resulting, as alleged, from the negligence of the defendant in failing to provide the warning signals required by statute to protect “ employees oil top of cars from injury ” by low bridges overhanging railroad tracks. (L. 188lj cli. 439, § 2.)

The accident is alleged to have occurred at Wheeler’s bridge, which passes over the tracks of the defendant about three miles west of Eome. The distance from the top of the rail to the bottom of the bridge was, until a recent change, about seventeen feet, while the height of ordinary freight cars is ten feet and nine inches, and of refrigerator cars twelve feet and five inches. On the lltli of November, 1887, the plaintiff’s intestate was acting as head brakeman on a freight train composed of twenty-nine refrigerator and three ordinary freight ears. It was his first trip as brakeman, and he had passed but once before under Wheeler’s bridge, which had no warning signals on either side to notify trainmen of danger. The rules of the defendant required conductors to see that the men employed upon trains were at their posts upon descending grades, and not to allow their trains to acquire a greater speed than one mile in four minutes; and it was the duty of the head brakeman tó keep watch of the train so as to see that it did not break apart. As the train approached Wheeler’s bridge from the west on a grade descending to the east, running at the rate of twenty miles an hour, on a dark, stormy morning, the intestate, no signal for brakes having been given, left the cab without taking bis lantern, and climbed upon the top of the car next to the engine. He was seen standing upon that car shortly before the train passed under the bridge and immediately thereafter he was found lying on top of the same car very near the centre, insensible, and in a short time he died. No evidence was given as to the cause of death, other than the facts already stated, and when the plaintiff rested, as well as at the close of the evidence, the defendant moved for a nonsuit upon the ground, among others, that the evidence failed to show that the death of the intestate was caused by the negligence of the defendant.. The motion was denied, the defendant excepted, and now urges the failure of the plaintiff to connect the death of the decedent with the omission to erect warning signals as the main ground for asking a new trial.

In an action to recover damages for negligence, the burden is upon the plaintiff to establish by a fair preponderance of evidence every fact that is essential to his cause of action. It is not enough to show that the defendant was negligent and that the plaintiff was free from negligence, but it is also necessary to show that the negligence of the defendant caused the injury for which a recovery is sought. The negligence must be connected with the injury by natural and uninterrupted sequence, as cause is connected with effect. While direct evidence is not essential, the circumstances must be such as to fairly permit the inference that the negligent condition or act contributed so proximately to the injury that without its agency the accident would not have happened.

Upon the trial of this action the plaintiff failed to meet the burden of proof that the law thus cast upon him by showing that the death of his intestate was caused by contact with the bridge. He did not even show that the deceased was of such a height that, standing erect upon the car, he could have been struck by the bridge. Assuming that in the absence of proof upon the subject, the jury would have been justified in finding that he was of the average height of men, still there was no evidence to warrant the conclusion that any part of his body was hit by the bridge. (Hunter v. N. Y., O. & W. R. R. Co., 116 N. Y. 615.) Ho evidence was given tending to show any wound or bruise upon his person, or that he died from violence instead of disease. For aught that appeared his death might have been owing to some natural cause, such as apoplexy or heart disease. The mere coincidence of his death with the time of passing under the bridge, does not satisfy the burden of proof, under - the circumstances of this case, for the evidence is to be considered with reference to the ability of the one side to produce and of the other to contradict. While it is true that slender evidence is sometimes permitted to become the basis of a finding of fact, it is when it appears that there is no more to he had, and it is allowed under the necessity of the case in order to prevent injustice. No such necessity existed upon the trial under review, for it appeared that a coroner’s inquest was held, and the plaintiff, who was the father of the deceased, testified that he attended his funeral. No reason was given for not showing the cause of death or the appearance of the body, and, under .such circumstances, it must he presumed that it was within the power of the plaintiff to show, if such were the fact, the existence of fresh wounds sufficient to cause death, and of such a nature as to have been inflicted by striking tbe bridge. Nothing of the kind was shown, doubtless through inadvertence upon the first trial, and, possibly, through tbe absence of witnesses upon the second, when tbe printed testimony was read from an appeal hook. The case was not tried upon the assumption by both parties that the injury was owing to the bridge, for the counsel for the defendant, as tile case shows, openly contended that there was no proof that the deceased met his death in the manner alleged or through the agency of tbe defendant. Tbe plaintiff, having shown that his intestate might have been struck by the bridge, and that, although apparently well just before, he was in a dying condition just after passing under it, went no farther in his proof, but asked the jury to find from those facts that the death was owing to the bridge. We are of the opinion that this ivas not enough, under the circumstances, and that it was incumbent upon him to produce further evidence, or, at least, to show that no more could be had, after due effort to procure it.

The judgment should be reversed and a new trial granted, with costs to abide event.

All concur, except Martin, J., not sitting.

Judgment reversed.  