
    The L. S. & M. S. Ry. Co. v. Andrews, Admr.
    
      Evidence — To sustaiji allegation by proof of circumstances — Natural inference — Damages for wrongful death.
    
    In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is not a. more natural inference than any other.
    (Decided May 10, 1898.)
    Error to tne Circuit Court of Lucas county.
    This is a petition in error to reverse a judgment of the circuit court affirming a judgment of the court of common pleas awarding damages to Andrews, as administrator, for negligently causing the death of his intestate, The substance of the original petition of the administrator is, that Barton was a brakeman in the service of the company, and upon the night of his death was head brakeman on a freight train; that it was his duty to be upon the front end of the train, or in the cab, and from that position to keep a constant look-out for the rear end of the train during the passing of a grade which the train had just completed; that the night was dark and stormy, and that the observation of the light, at the rear end of the train, was rendered more difficult because in making up the train, passenger cars of greater width than the freight cars had been placed between the locomotive and the caboose; that while in the discharge of his duty, he was leaning out of the gangway between the engine and tender to see the lights on the side of the caboose, his head struck the casing of the bridge which the company negligently maintained at a height of eight or nine feet above the level of the bridge, and so near to the train as to be a source of danger, of which the deceased had no knowledge. The answer admitted that the deceased sustained fatal injuries at the time and place alleged, but denied all allegations of negligence, and averred that the injuries were sustained by reason of the want of care on the part of the decedent. The allegation that the deceased was negligent was denied by reply. -
    The facts clearly established by the evidence are that the bridge was in no respect out of repair, but was in the condition in which it had been from the time of its erection, about eight years before. The train on which Barton was head brakeman passed over it very rapidly, and while it was passing, he came in collision with the easing which enclosed the truss, receiving injuries which were immediately fatal. The fact of such collision was shown by marks upon the casing commencing near the end at which the train entered the bridge, and about two feet from the top of the casing, the marks descending from that point to the further end of the bridge near which the body was found. Barton had been employed by the company as brakeman about six months on this and another divison, and had passed over the bridge something over twenty times. On the night of his death the engineer and fireman saw him standing in the gangway between the locomotive and tender shortly before they reached the bridge, but he was not seen by any one thereafter until he was found dead. The casing was something more than two feet from the train. At the conclusion of the plaintiff’s evidence the court was requested to direct a verdict for the company, which was denied. After a verdict in favor of the administrator, the company moved for a new trial on the ground, among others, that the verdict was not sustained by the evidence and was contrary to law, and this motion was overruled.
    
      Potter db Emery, for plaintiff in error.
    
      George B. Boone and J. K. Hamilton, for defendant in error.
   Shauck, J.

It is not believed to be necessary to repeat here the familiar rules of-law concerning liability for neglig’ence. The case is susceptible of clear solution by the application of one of those rules to the evidence in the record. To reach at once the point on which our decision is to be based, it is assumed that the company was negligent in maintaining the bridge with the casing so near the train, and that the deceased did not, with knowledge, acquiesce in such negligence so as to defeat the action. The theory presented in the original petition, and in the argument of counsel, is, that Barton was in the discharge of his duty to watch the rear end of the train to see if it had parted while descending the grade, and while so engaged was leaning from the side of the tender, looking for the light on the side of the caboose, in the rear of the wider coaches, and while so engaged he was killed. The theory is not supported by any evidence whatever. Barton was last seen alive shortly before the locomotive reached the bridge when he was standing on the gangway, or platform, between the engine and tender, with his lantern on the floor by his side. After the train had passed the bridge it was noticed that while his lantern was still there he had disappeared. No one saw him leaning over the engine or make any effort to see the rear of the train. No other evidence in the case suggests the manner of his death except the marks on the casing. Certainly an allegation of fact may be established by circumstantial evidence, but the circumstances to have that effect must be such as to make the fact alleged appear more probable than any other. The fact in issue must be the most natural inference from the facts proved. Not only did the circumstances here disclosed fail to make it appear that Barton’s death occurred in the manner alleged, but since the point at which his head struck .the casing was certainly not more---it seems to have been less— than two feet above the level of the platform upon which he was standing when last seen, the natural inference is that he fell from the train. The circumstances fail to showthat the death of Barton was due to the negligence alleged against the company. A recovery upon such evidence cannot be sustained, while it is held that the employer is not the insurer of the safety of the employee. A verdict for the defendant should have been directed as requested.

Judgments of the circuit court and court of common pleas reversed.  