Owen v. Illinois Central Railroad

Terral, J., delivered the opinion of the court. Appellant brought suit agaiusf the defendant for personal injuries inflicted by the running of the locomotive and cars of the defendant company, alleging the infliction of great and grievous injury upon him by reason of the negligence of said company; said injuries were alleged to have been inflicted upon the plaintiff below by reason of one or more of four several grounds of negligence set out in the disjunctive. No objection, [145] however, was made to the form of the declaration, nor was any objection interposed to the evidence as not supporting some one of the canses alleged, or of a cause of action not alleged bat made by the proof. The evidence showed that in March, 1897, appellant was employed as a watch or guard at one of the trestles of the railroad in the Tacona river bottom: the waters of the river were very high, and the plaintiff was a guard at one of these trestles to watch out for danger to the trestle from the high water, and to give notice to passing trains; he commenced his watch at the trestle on Tuesday and continued until the succeeding Saturday night. About midnight Saturday night appellant and Stanford, section foreman, were at the trestle watched by Owen, and hearing an approaching train, the section foreman left Owen and went to examine another trestle about one hundred yards away, and on his return, after an absence of some ten minutes, and after the train had passed, he found the appellant lying by the side of the track near the edge of the water, Unconscious and seriously wounded. The distance from the rail of the track to the viater, on the side plaintiff was found, was variously estimated to be from three to six feet. Plaintiff testified that he flagged the train to slow up, in order to pass over the trestle, which the train did not seem to do, but when it neared him he stepped off the track as far as he could for the water, and to the place where he had stood for other trains to pass; that the engine passed him going rapidly, when he was struck by something and became unconscious, and so remained for several weeks. The plaintiff’s evidence does not show, in our opinion, any cause of action. Tt devolved upon the plaintiff to show the negligence of the defendant company, or the existence of such state of facts as would reasonably raise a presumption of negligence in it; and neither was shown. The plaintiff’s evidence discloses the facts which produced the injury, but throws no imputation of negligence upon the defendant company therefrom: the production of the circumstances connected with the [146] infliction of the injury removes any ground for resorting to any presumption of law in the matter; in the solution of the case, therefore, we are left to conjecture only, and mere conjecture will not support a judgment in any case. Affirmed.