Colburn v. Chicago & Northwestern Railway Co.

Tbe following opinion was filed June 1,1915: Barnes, J. Tbe running time of tbe train between Es-canaba and Oconto was about three hours. Tbe plaintiff was unable to state bow long be was on tbe train before be received bis injury, but thought be might have been hurt an hour and a half after be got on, or a half or three quarters of an hour before be got to Oconto. He did not change bis seat and was sure that be did not fall asleep. He did not notice whether tbe grip was in tbe rack when be boarded tbe train. He did not see it until it fell on him, and did not observe any one put tbe grip in tbe rack while be was on tbe train. He testified that if it was so placed be might have observed that it was being placed there and be might not. There were quite a few passengers and also some vacant places in some of tbe seats. Plaintiff did not know how many persons got on and off at stations. He also testified that, when be said that no one to bis knowledge placed tbe grip in tbe position it occupied after leaving Escanaba, wbat be meant was that be did not see any one put it there. Certain train employees testified that they made it a practice to observe whether parcels were so placed in tbe racks as to endanger passengers and that they did not observe tbe grip in question. Tbe jury found lack of actual knowledge, but also found that in tbe exercise of ordinary [280] care the trainmen should have discovered and removed the grip. It was incumbent on the plaintiff to show that the employees of the defendant did not exercise that degree of care for his safety that the law imposed on them. In the present case it was necessary to show by a preponderance of the evidence that the grip was in the rack sufficiently long so that such employees in the exercise of such care should have discovered and removed it. The plaintiff has not met this burden. It is a matter of pure speculation how long the grip had been in the rack before it fell. It is not a case where conflicting inferences might legitimately be drawn from the evidence. What the'fact is, is a matter of conjecture pure and simple. By the Gourt. — Judgment reversed, and cause remanded with directions to dismiss the complaint. A' motion for a rehearing was denied, with $10 costs, on October 5, 1915.'