Walker v. Louis Werner Sawmill Co.

Wood, J., (after stating the facts.) Conceding that -the appellee was guilty of negligence, which we think the proof tends to show, still there is nothing to show that such negligence was the proximate cause of the injury, or concurred in producing it, and, if it did, then it is clear from appellant’s testimony that his own negligence also contributed. While appellant testifies that the night was dark, and that the headlight was not burning, and that he had no lantern, and that no signal was given before starting, still it does not appear that, if the headlight had been burning, it would have lighted the place where appellant wás walking when he was injured. Nor does appellant say that the failure to give the signal, or to furnish him a lantern, caused him to stumble and fall. He says, “When I was within four feet of my place, walking by the side of the engine, I fell down, and my left hand fell across the rail.” He does not say that it was caused by the darkness or the starting of the engine without signal. We know that his injury was caused by his falling, but no one can say from the evidence what was the cause of his falling. The jury were not at liberty to find as a fact that the appellant fell because he could not see, or because the engine started without a signal If such had been' the fact, appellant might have stated it as a fact. If such was the fact, appellant knew it, better than any one else. It was not shown that the place where appellant was walking was rough. For aught that the proof shows to the contrary, appellant’s fall may have been the result of accidental misstep, not caused by any of the things charged as negligence in the company. It might just as well have been attributed to some inherent clumsiness or physical defect in appellant as to any other cause. The whole matter was left to conjecture, and in such case the inference from the undisputed evidence most favorable to appellee must .be taken, for appellant has the burden. Again, it appears that appellant did not get off to help make the coupling, but to get sand. He says: “When the train stopped this night, I got off to get sand.” True, after he had got off “to get sand,” finding that no sand was needed, he started to assist in making the coupling, but was told that he was not needed for that, and was warned to “keep out,” as the place was dangerous. It appears that he did not discover that the bucket contained “plenty of sand’-’ until he was off the engine. “1 didn’t get any sand; they had plenty to go over the hill,” he says. Again, he says, “I got off, and saw there was enough sand in the bucket;” then he went around to see about the trouble in coupling. Now, it was shown that he sat on one end of a plank on the front of the engine, and another brakeman sat on the other, and there was a sand bucket between them from which they each sanded the track. The bucket was about “two or three feet” from appellant, and he could just as easily have discovered that it had “plenty of sand” before he got off as afterwards, yet he says he “got off to get sand,” and “as quick as he got off he saw he had plenty of sand.” “If he had noticed, he would have known” that there was “plenty, of sand in the bucket.” It .conclusively appears that the carelessness of appellant himself in not discovering that there was plenty of sand in the bucket was the cause of his getting off; and if he had not left the engine to get sand, he would not have been injured, of course. He was guilty, by'his own undisputed evidence, of contributory negligence. ■ The court did not err. Let the judgment -be affirmed.