
    Jane Kelly, as Administratrix, etc., of Anson H. Kelly, Deceased, Appellant, v. Erie Railroad Company, Respondent.
    
      Negligence — evidence too conjectural to justify a verdict for the plaintiff.
    
    In an action to recover damages for the negligent killing of the plaintiff’s bus- . band, a locomotive fireman on the defendant’s railroad, by reason of an alleged defective and broken drawbar which failed to hold the engine and tender together, in consequence of which the decedent was thrown upon the tracks and run over by the tender, the plaintiff introduced in evidence a stipulation, made by the defendant to secure an adjournment of the case at an earlier Trial Term, which provided, “Defendant to admit on trial or retrials hereof that the drawbar now in possession of defendant’s attorney at his office in Goshen, N. Y., is the bar referred to in the complaint herein as having broken at the time deceased fell from the engine as admitted in the answer herein "l:" * * That said bar be treated and considered as an exhibit now in this case and that order for production or inspection thereof * * * he and hereby is waived by defendant,” also the answer of the defendant which admitted that deceased was engaged as a locomotive fireman and fell from the engine, the testimony of the plaintiff which did not relate to the accident, and the testimony of two experts which was directed to the defective character of the drawbar.
    
      Held, that the evidence was too conjectural to establish either the negligence of the defendant or the absence of negligence on the part of the plaintiff's decedent.
    Appeal by the plaintiff, Jane Kelly, as administratrix, etc., of Anson H. Kelly, deceased, from an order and judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 28th day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Orange Trial Term.
    
      John W. Lyon, for the appellant.
    
      Henry Bacon, for the respondent.
   Jenks, J.:

The administratrix complained that while her intestate was engaged as fireman on defendant’s locomotive the drawbar broke so that the locomotive was parted from the tender whereby the fireman was cast down upon the track where he was run over and instantly killed by the tender and the cars. The accident was charged to the negligence of the' defendant in furnishing a defective, broken and unsafe drawbar; in not using due care in placing and in setting such drawbar so as properly to hold the engine and the tender; in not properly inspecting the drawbar; in failing to employ safety chains of proper and usual size, and in employing an incompetent and an inexperienced engineer. The answer admitted the employment and the service of the intestate, his fall from the locomotive engine under the train of cars to his death, denied the other allegations, and alleged that if death came as the result of negligence or carelessness, as to which no admission was made, it was due alone to the carelessness of the intestate or of his fellow-servants. Upon the trial the plaintiff offered the minutes taken on a stipulation for an adjournment at an earlier Trial Term. The part thereof now material reads: “ Third. Defendant to admit on trial or retrials hereof that the drawbar now in possession of defendant’s attorney at his office in Goshen, N. Y., is the bar referred to in the complaint herein as having broken at the time deceased fell from the engine as admitted in the answer herein, and the same bar inspected and examined by plaintiff’s expert witnesses and plaintiff’s attorney at main offices of defendant in City of New York. Fourth. That said bar be treated and considered as an exhibit now in this case and that order for production or ins]oection thereof * * be and hereby is waived by defendant. Said bar to be deposited with the clerk of this court on request of plaintiff’s attorney * * * Fifth. That plaintiff or any proposed witnesses may have access to and privilege of further inspecting and examining said drawbar at all reasonable times before trial or retrial hereof.” The plaintiff’s case further consisted of testimony of the plaintiff not relating to the accident, and of testimony of two experts directed to the defective character of the drawbar. Upon the motion to dismiss the complaint on the ground that neither negligence in the defendant nor absence of contributory negligence in the plaintiff’s decedent was shown, the learned trial justice nonsuited the plaintiff upon the testimony, not on the merits.

The learned counsel for the appellant contends that admissions in the answer that the intestate was engaged as a fireman at the time of his death and fell from the engine to his death, when read with the stipulation, establish that the intestate fell from the engine in the course of his employment by reason of the breaking of the drawbar, and, therefore, that the issue is narrowed to the condition of the drawbar. Ye think that he mistakes the force and the effect of the answer and the stipulation. The answer only admits that the intestate met with an accident while in the defendant’s service. And the stipulation simply identifies the drawbar as that referred to in the complaint, and provides a place of safe keeping that admits of access for inspection and for examination. Ye must resolve the stipulation by examination of the complaint and of the answer. It thus appears that the bar is referred to in the complaint “ as having broken at the time deceased fell from the engine,” while that “ deceased fell from the engine ” is admitted in the answer, but that there is no admission therein referring in any way to the drawbar. The intent of the stipulation, then, might be stated thus, is the bar referred to in the complaint as having been broken at the time deceased fell from the engine, the fall being admitted in the answer.” In other words, here is but identification of an exhibit, and not the admission of any liability, provided that negligence in the use or in the inspection of the bar be proved. The nonsuit was right. There is no proof of any negligence of the defendant, while its liability cannot be based upon conjecture or be established by mere possibilities. (Searles v. Manhattan Railway Co., 101 N. Y. 661; Ruppert v. Brooklyn Heights R. R. Co., 154 id. 90.) The decisions cited by the learned counsel for the appellant are not in point. In Jones v. N. Y. C. & H. R. R. R. Co. (28 Hun, 364) the liability was based upon the furnishing of an unsafe ladder wherewith to climb to the top of a freight car. While none saw the accident, the court dwelt upon the physical conditions of the trampled place, the mark between the rails as if something had been 'dragged, the clothing along the dragged mark, the brake stick at the crossing, the blood on the wheels and a broken rung of the kind used in such ladders, with a fresh break, found in the middle of the track at the trampled place, all of which, in the opinion of the court, tended to show that the fall of the deceased was due to the breaking of the ladder. In Noble v. N. Y. C. & H. R. R. R. Co. (2C App. Div. 40) the intestate was found dead near the track, fifty-six or fifty-seven feet south of the crossing, with his skull fractured and his side completely crushed in. Hear him lay a lantern called a marker, which was subsequently found to belong to the pilot beam of the locomotive, and the door of this lantern was under the intestate’s left breast, within the lapel of his overcoat. There was blood upon the crossbeam of the locomotive. Fitzgerald v. N. Y. C. & H. R. R. R. Co., cited by the defendant as in 37 Appellate Division, 127, was reversed in 154 New York, 263. In Fordham v. Gouverneur Village (160 N. Y. 541) the court say that the evidence was slight. The accident happened in the night time. The defendant was laying a water pipe under the sidewalk of a bridge, and had cut holes in the planking thereof, and had covered them at night by placing over each hole a plank one or two inches thick. There were no lights or no warning signals. The intestate’s way was naturally across the bridge, and she was found upon the bridge severely injured in such manner as might follow a fall and a striking of the knee upon the floor or some hard substance. The "court held that there was evidence to justify a finding that the injury was due to a fall over the plank. Thus, in the authorities cited by the learned counsel, while there was absence of eye-witnesses, facts, more or less cogent, were established that justified sound conclusions and permitted fair inferences, not the mere indulgence in speculation or in guesswork. In Fitzgerald v. N. Y. C. & H. R. R. R. Co. (supra) the court say : “ 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 fairly to 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.” This case does not satisfy the rule. The record shows that the intestate was serving as a fireman on a train of the defendant in the night time; that he fell from the engine under the train and was run over ; and that a drawbar used between the locomotive and the tender was broken. But there was no proof as to how the accident to the intestate happened, or of any fact that threw any light upon it or permitted any fair inference concerning it. There was no proof of the absence of any safety chains, or of any negligence in inspection, or that the engineer was incompetent, or that the draw-bar broke before or at the time when the intestate fell from the engine, or that his fall was consequent to the breaking of the bar. The sole facts established were the presence of the intestate on the engine, his fall therefrom to his death, and that the drawbar was broken at some time. There was not even opportunity for the application of the principle, post hoc, propter hoc. Moreover, there was not the slightest evidence of freedom of the intestate from contributory negligence, which it was the duty of the plaintiff to establish by facts or conditions capable of fair inferences, or from the “ drift of the surrounding circumstances.” (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420.) The exception to the question put to the witness Olsen as to connections between an engine and a tender is not well taken. The witness was not a “ railroad man,” and did not pretend to speak with- reference to the engine and tender used by the defendant on the night of the accident, or to that kind of engine, but generally and upon mere observation.

The judgment is affirmed.

Hirsohberg, J., not sitting.

Judgment unanimously affirmed, with costs.  