One of the witnesses testified that in attempting to pass from one car to the other "it is safer to take hold of the handhold. If there is no handhold to the car to which you are going, you have to step from the other car to that car without holding to any thing, and if the end of the front car is down there would be no handhold or anything else Hempfling could have held to; he just had to jump to the front car." Witness further tes-ed the risk. tified that he did not need the grabirons on any car, but that he usually used the grab

this defective condition of the cars. Nor was it such an open and obvious defect that he was bound to know thereof. On the other hand, he had a right to assume that the company had not been negligent in providing safe appliances for doing the character of work that he was called upon to do. It was the duty of the inspector not to permit defective cars to go into the makeup of a train.

In other words, his death was consistent only with the existence of negligence on the part of the company in failing to provide these handholds.

some of which the appellant was responsible and some of which it was not responsible, produced the injury, leaving the jury to guess which one, as in the case of BolenDarnall Coal Co. v. Hicks, 190 Fed. 717, 111 C. C. A. 445, relied on by counsel for appellant. But here, as we view the evidence, the death of Hempfling was consistent only with the conclusion that he fell from the car [4] Learned counsel for appellant, while by reason of the fact that he had no grabconceding that the testimony tended to irons by which to hold as he was attemptprove that there were a less number of grab-ing to pass from the twelfth to the thirirons on the two cars than was usual and teenth car, as mentioned in the testimony. customary," and "that the track over which the train was being operated at the point at which decedent met his death was rough and uneven," nevertheless contend that "there is not a syllable of testimony in the record that either of these conditions contributed in any way to the death of plaintiff's decedent." This is the most serious question presented by the record. But we are of the opinion that the testimony was sufficient to warrant the finding of the jury that Hempfling's death was caused through the negligence of appellant as alleged in the complaint. The facts adduced in evidence, as disclosed in the statement, were sufficient to warrant any reasonable mind in concluding that Hempfling's death was caused by the failure on the part of the appellant to provide grabirons on the ends of the two cars between which he fell at the time he was crossing from one to the other.

The jury were not invited to guess, without any proof, as to the probable cause of Hempfling's death. The law is well settled that where are no eyewitnesses to the injury, and the cause thereof is not established by affirmative or direct proof, then all the facts established by the circumstances must be such as to justify an inference on the part of the jury that the negligent conditions alleged produced the injury complained of. Where such is the case, the jury are not left in the domain of speculation, but they have circumstances upon which, as reasonable minds, they may ground their conclusions. Negligence that is the proximate cause may be shown by circumstantial evidence as well as by direct proof.

Hempfling was an experienced brakeman, Here practically the uncontroverted eviin good health, strong and active. As one dence shows that appellant was negligent in of the witnesses expressed it, "he was a failing to provide handholds which were necgood steady man, industrious, and kept at essary to insure the safety of the brake his work." It is not at all probable that men in the discharge of their duties, and we such a man, pursuing his work in the usual conclude that there was, at least, substantial way, would have fallen between the cars and evidence to warrant the jury in finding that lost his life if there had been the usual and the absence of these handholds caused the customary safeguards provided by the ap-death of Hempfling. There was no evidence pellant, and which were necessary to be pro- to warrant an inference that Hempfling fell vided for the protection of brakemen while crossing from one car to the other.

While there was no eyewitness to the manner of Hempfling's death, it is certain that he came to his death by falling between the cars, and it is reasonably certain that he would not have fallen if the customary handholds for his protection had been provided.

This is not a case where the evidence is consistent "equally with the existence or nonexistence of negligence," as in C. & O. Railway Co. v. Heath, 103 Va. 64, 48 S. E. 508. It is not a case where negligence and proximate cause of death are to be inferred merely from the accident and left as mere matter of conjecture or guesswork for the jury, as in Midland Valley Railway v. Fulgham, 181 Fed. 91, 104 C. C. A. 151, and the many cases there cited. Nor is it a case where the proof shows that "one of a half dozen things may have brought about the injury." Nor was it a case where one of several things, for

between the cars by reason of any inadvertence or any imprudence on his part in attempting to cross from one car to the other. There was nothing to warrant the inference that his fall was the result of mere accident. On the contrary, a brakeman of Hemfling's build, health, experience, and habits of work would not likely have fallen through negligence or inadvertence. Such a conclusion, under the evidence, would be unreasonable. But it was quite reasonable for the jury to conclude that Hempfling started to cross from one car to the other in the usual way, as the evidence shows, and that in reaching for the grabirons which he expected to find he discovered and probably rested his foot on the one grabiron on the car, while holding to the top, and naturally supposed that the other grabirons were also present on the car as they should have been, and, in attempting to lower his foot to one of these grabirons below the top one, he went down straight under the car because the grabirons

were not there. The position of the broken | say the least, they were no more cogent than globe and lantern and the place where the the facts relied on in this record to show oil was found on the drop end of the other such connection. In that case the court, car are not inconsistent with the idea that after announcing the rule that there must Hempfling went to his death in the manner be something more than mere conjecture to indicated; because in the fall Hempfling, in sustain the finding of the jury, said: "While attempting to catch the grabiron on the thir- this salutary rule is not to be ignored, it teenth car and thus support and save him- is equally well settled that any material self, might have struck the lantern in the fact in controversy may be established by manner indicated by the position of the oil circumstantial evidence, and that, though and the lantern itself and broken globe. Or the testimony of witnesses may be undisthe jury might have concluded that Hemp-puted, the circumstances may be such that filing attempted to pass over the car by jump ing down from the twelfth to the thirteenth car, and in so doing that he slipped and fell between them, striking his lantern at the place indicated by the oil on the drop end in an attempt to catch a handhold which he supposed was present on that end; and the jury were warranted in finding that if this was the way in which he fell he might still have saved himself from death by the presence of the handhold. But, in either event, in a clear fall between the cars, with no handholds to catch to and nothing else on which to hold, Hempfling was caught in a veritable death trap.

The witnesses showed that, no matter in what manner he may have fallen, if the handholds had been provided he might have saved himself by catching same as he went down. So, as stated, the conclusion of the jury that the unfortunate death of Hempfling was the result of the absence of the handholds on the ends of the cars is not based on conjecture, but has substantial basis in the evidence to rest upon.

The law applicable here is well stated in a somewhat similar case from Missouri, as follows: "In actions for damages on account of negligence, plaintiff is bound to prove, not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact

It

itself. This would often be impossible.
will be sufficient if the facts proved are of
such a nature, and are so connected and re-
lated to each other, that the conclusion
therefrom may be fairly inferred." Settle
v. Frisco Railroad, 127 Mo. 336, 30 S. W.
125, 48 Am. St. Rep. 633. See, also, Guthrie
v. Maine Central Ry. Co., 81 Me. 572, 18
Atl. 295; Coates v. Boston & Maine Ry., 153
Mass. 297, 26 N. E. 864, 10 L. R. A. 769;
Pullutro v. D., L. & W. Railroad (Super.
Buff.) 7 N. Y. Supp. 510-cited in appellee's
brief.

different minds may reasonably draw different conclusions therefrom. Such a state of case calls for a submission to the jury of the question at issue; and, where the circumstances are such that different minds may reasonably draw different conclusions therefrom, and the result is not a mere matter of conjecture, without facts or circumstances to support the conclusion, then it is the duty of an appellate court not to disturb the finding of the jury.”

Applying the doctrine of the above cases to the facts of this record, the judgment is correct, and it is therefore affirmed.

CHICAGO, R. I. & P. RY. CO. v. CRAW-
FORD.

(Supreme Court of Arkansas. April 14, 1913.)
MASTER AND SERVANT (§ 233*) - LIABILITY

FOR INJURIES-ASSUMPTION OF RISK.

Plaintiff, an experienced car repairer, was directed to place certain hangers on a car door and hang the door. After hanging the door, plaintiff was trying to shove it with a crowbar, when it fell and injured him. There would have been no necessity for using the crowbar if the hangers had been of sufficient size to go have directed the blacksmith, whose duty it over boltheads in the slide, and plaintiff could was to make any changes directed by the car repairers, to change the hangers. Held, that it was a part of plaintiff's duty in hanging the door to see that the hangers properly fitted the slide, and that he assumed the risk of injury from his own negligence in failing to discharge this duty.

Servant, Cent. Dig. §§ 681, 684-686, 701–742; [Ed. Note.-For other cases, see Master and Dec. Dig. § 233.*]

Appeal from Circuit Court, Union County; Geo. W. Hays, Judge.

Action by Lee Crawford against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

The appellee was in the employ of appellant as a carpenter on what is known as the "rip track" in the yards of appellant in the city of El Dorado. He received an injury by a car door jumping the track and severely

In the recent case of St. Louis, Iron Moun-crushing his hand. He alleged in his comtain & Southern Ry. Co. v. Owens, 145 S. W. plaint that the appellant was negligent in 879, the facts tending to show the causal not exercising ordinary care to furnish him connection between the alleged negligent act with reasonably safe means and instruments and the death of the brakeman were estab- with which to work. The appellant answerlished by circumstantial evidence only. Toled, denying the material allegations of the

complaint, and setting up that it was the duty of the appellee to correct the defect, or have the same corrected, before putting the hinges on the door, and that it was the duty of the appellee when he hung the door to see that the hinges would properly work before attempting to close the door. It therefore charged that the appellee's injury was the result of a risk assumed by him under his contract of employment.

he could have seen that the hangers would not go over the boltheads; but he had not worked any on the car and paid no attention to the door slide. The blacksmith was there to do anything appellee should tell him to do with reference to those hangers or anything else. The blacksmith was under the direction of the car repairers, such as appellee, and would change the hangers or fix them as appellee told him to do. There was no one working with appellee at the time he got hurt. He pulled the door himself, and that caused it to fall. It would not have fallen if appellee had not touched it. No one pointed out the hinges that appellee was to use, but he was told that they were at the blacksmith shop and went and found them there. The negroes hung the door under the direction of appellee, putting it right where he told them.

The appellant asked a peremptory instruction, which the court refused, and the court gave, at the request of appellee, prayers for instructions which submitted to the jury the question as to whether or not appellant was negligent in failing to exercise ordinary care to furnish appellee a safe place and safe appliances, to which appellant duly excepted. Judgment was rendered in favor of the appellee for $250, and appellant duly prosecutes this appeal.

Thos. S. Buzbee and Geo. B. Pugh, both of Little Rock, for appellant. Mahony & Mahony, of El Dorado, for appellee.

The facts, stated most strongly for the appellee, are substantially as follows: Appellee had instructions from his foreman to fix a certain car door to a car which was then on the rip track. The foreman told him that he would find a certain pair of hinges at the blacksmith shop, which had been laid out for him to place on the door. Appellee got the hinges or hangers and put them on the door and told his foreman he had the door ready, and the foreman gave him orders to get some negroes and put it up. The foreman told appellee that there was no slide to be had to place on the bottom of the door, and that instead of placing a slide on the bottom of the door to cut off about two inches of the same. The negroes were employed by the appellee to assist him. He was not their boss. They were coemployés with him, acting under the direction of the foreman. After the negroes had hung up the door, appellee was trying to shove same up from the bottom with a crowbar, when the door fell and mashed his hand. There was a door track at the bottom of the door on the car, but no slide, and the foreman therefore directed the appellee to cut off the door so it would go behind the track. Appellee, in closing the door, had a crowbar, attempting to force it behind the track. The hangers were already made when appellee went to get them. He had nothing to do but to put on the hangers or hinges that were furnished him. If the hinges had been made sufficient size, and a slide had been placed on the lower track of the car, there would have been no necessity for appellee using the crowbar, and there would have been no occasion for the door jumping the track. When appellee put the hangers on the door, it was 75 or 100 yards away from the car on which he was to hang it, and he had not noticed the slide. It clearly appears, from the undisputed He had been working for appellant about 18 evidence, that the injury to appellee was causmonths, as car repairer, when the accident ed because the hinges or hangers were not happened. He had put about a dozen hang- suitable to work on the door and on the door ers on different doors. Knew that they put slide where they were placed. Appellee tesdifferent sorts of hangers on different sorts tified that if the hinges had been made of of slides. He did not look at the slide to see sufficient size there would have been no newhether the hangers would work on it or cessity for his using the crowbar in the mannot. The hangers were proper for slides ner he did, which caused the door to fall and where there were no boltheads, or where the injure him. This defect in the size of the boltheads were below the point where the hinges was the proximate cause of the appelhangers came to, so the slide would not lee's injury, and it was the duty of appellee, catch the hanger. If the blacksmith had under his contract of employment, to see that been asked to open up the hangers so they the hangers or hinges properly fit the runwould go over the boltheads, he would have ners; otherwise he could not properly hang done it. If appellee had looked at the slide, the door, and that was a part of his duty.

WOOD, J. (after stating the facts as above). The instruction which submitted to the jury the issue as to whether or not appellant had failed to exercise ordinary care was abstract and prejudicial. There was no testimony to warrant the court in submitting any such issue to the jury.

Under the undisputed evidence the court also should have granted appellant's prayer for instruction No. 3, to the effect that it was the duty of the appellee to see that the appliances with which he was working were safe and suitable, and that his injury resulted from his failure to perform that duty, and therefore he could not recover.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes