Schell v. Chicago & Northwestern Railway Co.

134 Wis. 142 | Wis. | 1908

Tbe following opinion was filed November 5, 1907:

Siebeckeb, J.

An examination of tbe evidence at once leads to tbe inquiry: How did the decedent come to bis death ? Appellant insists that tbe facts and circumstances adduced tend to show to a reasonable certainty that be was struck by tbe detached caboose as be was about to cross tbe track in tbe regular course of tbe performance of bis duties, while be was going from bis proper position for signaling the engineer on tbe south of the track, and some distance from tbe tunnel, to bis appointed station on tbe north of tbe track near tbe doors of tbe tunnel, there to await the arrival of tbe next train. There is no direct proof on tbe subject. Tbe claim is that tbe facts point persuasively to tbe conclusion that decedent must have started from bis usual position on tbe south of tbe track to recross it on tbe way to tbe tunnel doors when be was struck by the detached caboose. But is this well founded? Are not the facts and circumstances of equal probative force in support of the inference that he was struck by one of the engines or the other caboose, or that the injury was inflicted in some other and wholly unaccountable way, or that his death was due to some purely accidental means, without the fault or neglect of any one ? A consideration of the situation presented by the facts and circumstances leaves the cause of decedent’s death shrouded in such uncertainty that it cannot be.said that it was due to defendant’s negligence. It devolved on the plaintiff, under the burden of establishing the facts at issue, to produce evidence which tended to show with reasonable distinctness how decedent came to his death. This burden is not met by proof which is as consistent with a theory that his death was due to a cause not actionable as with a theory that it was due to an actionable cause, and in such a state of the proof the case fails to come within the proper province of a jury. We deem the case to be within the decisions in the following cases, and are persuaded that the evidence is not sufficient to warrant submission of plaintiff’s case to a jury and that the nonsuit was properly granted: Sorenson v. Menasha P. & P. Co. 56 Wis. 338, 14 N. W. 446; Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Chybowski v. Bucyrus Co. 127 Wis. 332, 106 N. W. 833, and cases cited.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied January 8, 1908.