203 F. 221 | 3rd Cir. | 1913
These arc the facts, and we think it must be evident that they are consistent with more than one explanation of the deplorable event, with so many, indeed, that in our opinion the cause of death can only be conjectured. For example, the deceased was well acquainted with the gallery and its equipment, and knew the dangers to which he would be exposed. What brought him from the car to the ground ? Had he .forgotten the wire, or miscalculated its position, and did he therefore continue too long in the dangerous attitude of standing on or in the
Authorities are scarcely needed to support the propositions that except in rare cases (of which this is not one) negligence cannot be inferred from the mere happening of an accident, and cannot be conjectured but must be proved. We may refer, however, to the following decisions: Patton v. Railway Co., 179 U. S. 663, 21 Sup. Ct. 275, 45 L. Ed. 361; Oil Co. v. Van Elderen, 137 Fed. 571, 70 C. C. A. 255; Clare v. Railroad, 167 Mass. 39, 44 N. E. 1054; Leary v. Railroad, 173 Mass. 373, 53 N. E. 817; Warner v. Railroad, 178 Mo. 125, 77 S. W. 67; and the cases cited in 29 Cyc. 631, par, 2, note 52. In Patton v. Railway Co., the Supreme Court said:
“Tlie fact of accident (to an employé) carries witli it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employé to establish that the employer has been guilty of negligence. * * * In the latter case it is not sufficient for the employé to show that the employer may have been guilty of negligence. The evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employé is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of*225 an accident justifies any departure from settled rules of proof resting upon all plaintiffs.”
And the Supreme Court of Pennsylvania is in full accord with these views. Alexander v. Water Co., 201 Pa. 256, 257, 50 Atl, 991; Marsh v. Railroad, 206 Pa. 560, 56 Atl. 52; Zeigler v. Simplex Co., 228 Pa. 67, 77 Atl. 239.
The judgment is reversed.