#### Johnson, Administratrix v. Mobile & Ohio Railroad Company, et al.

(Decided November 30, 1917.)

Appeal from Ballard Circuit Court.

1. Negligence — Presumption.—Negligence can not be presumed, but must be proven, and if the plaintiff only proves such facts and circumstances, as show that an injury might have equally resulted from several different causes, only one of which can be attributed to the defendant’s negligence, his case has failed.

2.- Negligence — Proximate Cause. — The negligence proven must, also, be shown to be the direct and proximate cause of the injury, before any liability is incurred for the injury.

J. B. WICKLIFFE and W. A. ANDERSON for appellant.

JOHN E. KANE, E. T. BULLOCK and S. R. PRINCE for appellee, Mobile & Ohio R. Co. •

TRABUE, DOOLAN & COX for appellee, Illinois Central R. Co.

WHEELER & HUGHES for appellee, Illinois Central R. Co.

Opinion of the Court by

Judge Hurt

Affirming.

The Chicago, St. Louis and New Orleans Railroad 'Company owns a line of railroad which extends through the town of Wickliffe, in Ballard county. Through the town of Wickliffe the road has two tracks, which are parallel, but the evidence entirely fails to show, what the distance is between the tracks, either, at the point, where the tragedy, which is the subject of this action, occurred, or'at any other place, but, presumably, the tracks are within a few feet of each other. The course of the tracks, through the town of Wickliffe, is-a north to south direction. .The trains, which pass over the road from the south to the north, travel upon the track, which is nearest to the east, aiid this track is called the “north-bound” track, while the trains, which travel from'the'north to the' south, pass over the track, which is nearest to the west, and this track is called the “south-bound” track. Court street,-in Wickliffe, runs in a direction from east to west;' and crosses the railroad tracks and leads from the' principal portion of the town to the Mississippi rivfer, which is beyond the railroad tracks from the principal business and residénce portion of the town. On the- north side of Court street, where it crosses the railroad'tracks, a'footway or sidewálk' extends along the *109street and over the tracks for the use of the foot passengers in traveling the street. The town contains a population of seven to eight hundred persons. On the 23rd day of December, 1914, at about 6:20 p. m., James Johnson, who was about fifty years of age, was sent by his employer to deliver a rug to a house, which is on . the west side of the railroad tracks, and between them and the river, and near the railroad tracks, but it is impossible to gather from the evidence, whether the location of the house was to the north or to the south of the intersection of Court street with the railroad tracks. One witness deposes, that the tracks are on an ascending-grade from Court street toward the south, while another testifies that the grade is an ascending one from Court, street, both, toward the north and the south. The deceased went toward the west, along Court street, with, the rug, and when he arrived at the tracks, the witness, says, that “he went up the -railroad to a brick, building that stands out from the depot down there.” Shortly after deceased crossed the railroad tracks, he returned to or near to the footway over the railroad tracks, described above, and just at the time, a freight train, which, was operated by the Illinois Central Railroad Company passed over Court street on the “north-bound” track, at a speed of seven to eight miles per hour.

It seems, that Johnson was about the foot crossing, between- the two tracks, when, about the time, that the rear end of the “north-bound” train was passing over Court street, an engine, with a caboose attached, passed over the “south-bound” track, at a- speed of from twenty to twenty-five miles per hour, and passed over Court street going toward the south, at the same time, that the rear end of the freight train was passing over the crossing, going toward the north. When the trains had passed, the body of Johnson was discovered, lying between the two tracks, about one and one-half feet from the foot-way over the tracks, and with his head about eighteen inches from the east rail of the “south-bound” tracks His body lay in a direction from southeast to northwest, with his head toward- the latter direction. A cut was upon the head of the body, but upon what portion of the head the evidence does not disclose. The. left leg was. broken, and some of the ribs, upon one side' or the other of his body, were, also, broken.' The body was. lifeless, when discovered,, though yet warm: The hour of his death was after nightfall, .but there was a. street, light upon each side of Court street, at its intersection *110with the tracks, and four of such lights were in front of the depot, which was on the east side of the railroad tracks and from seventy-five to one hundred feet north of, the crossing, but the evidence does not disclose anything,’ by which it could be determined what amount of light existed over the crossing.

This action was instituted by the administratrix of decedent against the appellees, Mobile *&*Ohio Eailroad Company, and Illinois Central Eailroad Company, to recover, of them, the damages, which his estate suffered from the destruction of his life. The petition contains ■an averment, that the Illinois Central Eailroad Company operates its trains over the road as a lessee of the Chicago, St. Louis and New Orleans Eailroad Company, and that the Mobile & Ohio Eailroad Company operates its trains over the road under authority granted it, by the Illinois Central Eailroad Company. This averment was not denied by the Mobile & Ohio Eailroad Company, but the Illinois Central Eailroad Company denied, by an amended answer-, that the Mobile & Ohio Eailroad Company used the road under any authority or permission granted by it. Four specific acts of negligence • were charged in the petition, and it was averred that each of the appellees was guilty of these acts of negligence. They were as follows:

First: The servants of appellants, who were operat-. ing the trains, operated them at such a dangerous rate of- speed, át the time and place, at which decedent was killed, that he was-unable to avoid them.

Second: They did not give warnings or sufficient warnings of the approach of the trains to the crossing to enable decedent to avoid them and keep out of the way.

' Third: They approached the crossing without keeping'the'trains under proper control, so as to avoid .injury to one upon or near to the tracks at the crossing.

Fourth: They, were not keeping a lookout.

These averments of negligence were denied by each ' of the appellees, by a separate answer.

At the conclusion of the evidence offered by appel-.' lant, the-court -sustained the motion of appellees, to direct a verdict in favor of each of them, and a judg- ' ment was rendered upon the verdict, dismissing the. petition. The appellant’s motion for a new trial was overruled, and she has appealed, and the only question for consideration is: . .Was there any evidence of actionable negligence upon the part of either of the appellees ?

*111Several witnesses deposed to the passing of the trains and the finding of decedent’s body and the physical facts surrounding it, but, none of them ever saw decedent until ¿is lifeless body was found, except one, who testified that, when decedent went along Court street to the railroad crossing, “he went up the railroad to a brick building that stands out from the depot down there.” The witness seems to have gone on to the river, and as he returned from the river he saw a train passing on the “north-bound’? track, “and Jim (decedent) Avas coming down the track,” and the last he saw of him, decedent was between the river and the train, which was going north, and at that time, another train came from' the north, over the “south-bound” track, and came between the Avitness and decedent and cut off his vícav, so that,, he saw decedent no more, until the trains had passed, when he saw his body lying, as heretofore described. When the witness observed these things, he was not asked nor does he state at what distance he was away.

There was not any evidence supporting the averment, that the Mobile & Ohio Eailroad Company was operating its trains under authority from the Illinois Central Eailroad Company, and the latter company having" denied the averment, it could be liable, only, for its own negligence. The undisputed proof in reference to its train was, that it was moving at the rate of seven or eight miles an hour, and had given the proper warnings of its approach, and that, as it was passing, the decedent was walking or standing alongside of it, and there is no evidence to sustain the charge, that, those, in charge of it, were not keeping a proper lookout. Further, it seems that it is impossible that decedent could have lost his life by contact with this train, arising in any way from an act of those operating the train, and could have only come in contact with it by some unavoidable misadventure of his OAvn.

It is not claimed, that the Mobile & Ohio Eailroad Company could be made liable for any negligence of the Illinois Central Eailroad Company, as the insistence is,, that it was operated under authority from that company, ¿ut it would be liable for its own negligence. The proof' amply shows, that the crossing was one in the streets of' a toAvn, and where it was the duty of thorn operating-trains to maintain a lookout, to give sufficient warning-of the trams’ approach, and to approach with the trains, under control, and if thev faded to do any of these things, and injuries resulted, of which such negligence was t¿e *112proximate cause, the railroad company is liable. The proof isfthat the necessary signals of the train’s ap-' proach w,ere...given by the ones operating the Mobile *&■*■Ohio train;; that .whistles were blown and the train bell' was ringing, as it passed the depot, which was only sev■erity-five .to one-hundred feet from the crossing. The. •speed of the- train, at such a place, was evidence of negligence, and-it could be inferred, that a train, operated at such a-.speed, was-not under sufficient control, and if it could be ¡'shown; that-there was a causal connection between the;-'speed"of the train and the killing of decedent, the appellant’s cause should have gone to the jury. It being the duty of those operating the train to maintain’ a lookout,'.-and ¡the proof' showing, -that if such lookout had been maintained, decedent, could have been seen by themdn time-to have stopped the train and to have saved his lifeyactionable negligence, in that regard, could have been'inferred, if there had been any evidence that decedent was, af the'time-he was killed, upon the “southbound” track, over which the train was passing. The undispute'd.'proof, however, shows that decedent was not' upon the ¡ “south-bound” track, but was walking or standing on the 'street between tracks, as the train going" north was passing him on one side and the one coming-south passed him' on the other and cut off the view of the witness; The decedent, not being upon the track or dangerouslynear- thereto, so as to be in a place of danger from the: passing train, it cannot’be inferred that a lookout was not'being maintained-, from the fact that no attempt was- made to stop -the train. It could not be inferred, that -the.decedent’s-death-resulted from the speed ' of the train'or the failure-to have it under control, if such ’ was the 'fact, When- the proof fails to show that he was upon the’-'track’ior-attempting to cross it, and could not escape, because of its dangerous speed. As decedent was at a place, where he was safe from contact with the train, Tegardléss of- its speed, it could not be inferred that his «death resulted-'from; its speed. Of course, it is unquestioned, that "-decedent- lost his life by coming in contact' with one'-or the- other of the trains, but how, or in what manner,'; or with which train he came in contact, can only he conjectliFed.' ■ " • * ' '

A wélí-récp^izéd .and, established. principle, which' applies tof tlxe daw of the negligence,, i's, that negligence is never1 ’presumed. Contributory negligence is never presumbSb'yNégligen'ce must be proven directly, or such’ *113facts must be proven as that negligence must'be necessarily inferred from the existence of the facts proven. It must be shown, that the act of negligence was, also, the proximate cause' of the injury. Negligence cannot be •assumed nor inferred from the mere fact, that an injury was sustained. When the injury is proven, negligence may be inferred from the facts and circumstances, which surround it, if it can be reasonably inferred from them, ■that the negligence caused the injury. Where the evidence is equally , consistent with the existence of negligence, as the proximate cause of the injury, and its nonexistence, the plaintiff has failed in his case. If the evidence shows, that the injury may have resulted from one •of several causes, but only one of these causes can be attributed to the defendánt’s negligence, the plaintiff has failed in his case, for the reasons above assigned. These views are supported by the following decisions of this court and many others, which are not here enumerated: Gayle’s Admr. v. L. & N. R. R. Co., 163 Ky. 459; L. & N. R. R. Co. v. Wathen, 22 R. 82; C. & O. Ry. Co. v. Adkins, 167 Ky. 329; Woodburn v. Union Light, Heat *&*Power Co., 164 Ky. 33; Caldwell’s Admr. v. C. *&*O. Ry. Co., 155 Ky. 609; L. *&*N. R. R. Co. v. Taylor’s Admr., 169 Ky. 435; I. C. R. R. Co. v. Day, 163 Ky. 367; Hughes v. Cincinnati, etc., Railroad Co., 91 Ky. 526; C. *&*O. Ry. Co. v. Bagby, 155 Ky. 420; Stewart’s Admr. v. N. C. & St. L. Ry. Co., 146 Ky. 129; Louisville, etc., v. Kaufman, etc., 105 Ky. 156; L. *&*N. R. R. Co. v. Hamburg-Bremen Fire Insurance Co., 152 Ky. 510. It is, also, a well-settled rule, that after admitting every fact shown “by plaintiff’s evidence- to be true, as well as all reasonable inferences, which can be drawn from such facts, if the plaintiff has yet failed to establish his case, the court should not submit it to the jury. Miller v. Metropolitan Life Insurance Co., 28 R. 225; Southern Ry. Co. v. Goddard, 121 Ky. 577; Fugate v. City of Somerset, 97 Ky. 48; C. *&*O. Ry. Co. v. Bagby, 155 Ky. 423, and many others.

From the evidence, it appears, that decedent was not •struck by the front of either of the trains, and the last any one saw of him, he was at a place, where he was secure from harm from either of them. If he remained at the place, between the trains, neither of them would come In contact with him. MLcould be conjectured from the lo•cation of the body, that he was struck by the Illinois ■Central train, as the head was to the northwest^ and that The wound upon the head was made after he was thrown *114into that location by the passing of the other train. If he was struck by the train on the “south-bound” track,, it could be conjectured that he would have been thrown-, forward upon the track to some- distance, and- not immediately down, with his feet in the direction in which the-train was moving, and his head to the point where he was-struck. It could be conjectured, that, being between the-two moving trains, he unwittingly and by his own act,, fell into contact with one or the other of them, either from, missing his footing or other cause. All of this, however,, would be mere conjecture. Suffice it to say, that the death.. of decedent is not proven, by any direct evidence,- nor-are any facts proven, from which it can be inferred, that, his death was proximately caused by any act of negligence, which is attributable to either of the appellees. It. is, furthermore, as consistent to determine from the evidence, that his death was caused by coming in contact,, solely, with one of the trains as with the other. Simply,, it is impossible to do any more than conjecture as to the direct and proximate cause of his death, other than that, his death was caused by coming in contact with one of the trains, but of which of the trains, or what caused hiro_ to come in contact with it, is mere speculation.

The judgment is therefore affirmed.