Murray v. Denver & R. G. R.

Elbert, J. The plaintiff, at the time of the injury complained of, was an employee of the defendant company. The evidence showed the accident and the injury to the plaintiff, but left the cause of the accident entirely unexplained. This was not sufficient to raise a presumption of negligence upon the part of the company. In actions of this character the presumption is that the employer has discharged his duty to the employee. It was for the plaintiff to overcome this presumption by showing negligence upon the part of the company. Wood, Mast. & Serv. §§ 368-382, and cases cited; Railroad Co. v. Salmon, 11 Kan. 83. This the plaintiff failed to do; the evidence does not fix liability upon any one. The cause of the accident is uncertain. It may have been the result of a defect, either latent or patent, in the machín [126] ery or appliances used, and the defendant company may or may not have had notice of the defect; it may have resulted from the neglect of an incompetent fellow-servant, of whose incompetency the company had full knowledge or no knowledge whatever; or it may have resulted from some other cause possible in the field of conjecture. Upon this point the jury would have been left to speculation had the cause been submitted to them. There was a defect of proof which precluded the application by the court of any known rule of recovery. The plaintiff failed to “prove a sufficient case for the jury,” and this is a statutory ground of nonsuit. Code Civil Proc, p. 48. The judgment of the court below is affirmed. Affirmed.