
    NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Henry, Marvin and Winch, JJ.
    Theodore C. Bender, Adm. v. Marcus A. Hanna et al.
    Evidence for and against Negligence Equally Inferential Requires Withdrawal of Case.
    When the evidence as to the physical cause of an accident is largely inferential and would lead to an equally natural inference precluding negligence, it is the duty of the trial judge to withdraw the case from the consideration of the jury.
    Error.
    
      II. F. Payer, M. B. Fxcell and B. M. Morgan, for plaintiff in error.
    
      F. K. Wilcox, for defendants in error.
   WINCH, J.

This was an action brought by plaintiff, as administrator of Frank Pesta, to recover damages for the death of the latter, alleged to have been caused by the negligence of defendants.

At the conclusion of plaintiff’s evidence, the trial judge sustained a motion of the defendants to direct a verdict in their favor.

It appears that Pesta on the night he met his death was engaged with others in unloading a vessel moored at the defendant’s dock; having finished his task be left the boat with about a hundred others, and some twenty minutes later was seen struggling in the water, about one hundred feet from where he left the boat, and was drowned.

There was evidence tending to show that there were no lights on the dock and that the night was very dark. Nobody saw Pesta fall into the water and there was n.o evidence tending to show how he got into it.

Counsel for plaintiff in error claim that the failure of defendants to light the premises was the proximate cause of Pesta’s death.

Quoting from their brief:

“On this point, the testimony showed without any question whatever, that Pesta got off the boat onto the dock, picked up his tools and started for home. Within one hundred feet or so of the place where seen just before falling, he was next seen in the water and was there drowned.
‘ ‘ The testimony tended to show that the man was in a position where, on the one side he was confronted with a net woi’k of tracks covered with cars moving, or liable to move at any time. On the other side, the dock, amounted to a dangerous precipice, with the water at the bottom. A mis-step in one side would precipitate him into the water; or a car might run over him on the other side. He fell into the water. It was so dark that a man could not see more than two or three feet in front of him. There is absolutely nothing in the case from which contributory negligence can be inferred. Suicide is out of the question. A ease is tried on' probabilities. The plaintiff’s theory is that Pesta stepped or fell off the dock on account of stumbling or losing his footing in some way in the darkness. What other theory is possible ? None.

We think that upon this statement of the case by counsel, the judgment of the common pleas court must be affirmed.

If it be true that there is absolutely nothing in the case from which contributory negligence can be inferred, it is equally true that there is absolutely nothing in. the case from which the negligenee of defendants can be inferred. Both knew, or had equal means of knowing, that it was dark and dangerous upon the dock that night.

Until some fact, besides the darkness, is shown, which explains how Pesta came to be in .the water, nobody will know whose fault it was that he got there.

The trial judge rightly refused to let the jury guess upon the subject. Lake Shore & M. S. Ry., v. Andrews, 58 Ohio St. 426 [51 N. E. 26] ; Cleveland T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. 821; 52 L. R. A. 142]; United States v. Ross, 92 U. S., 281 [23 L. ed. 707]; Gerwe v. Consolidated Fireworks Co., 5 Circ. Dec. 616 (12 R. 420); Connell v. Miller, etc., Mfg. Co., 10 Dec. Re. 129 (19 Bull. 22).

Judgment affirmed.

Henry and Marvin, JJ., concur.  