#### Colburn, Respondent, vs. Chicago *&*Northwestern Railway Company, Appellant.

*May 5*

October *5, 1915.*

*Railroads: Injury to passenger: Suitcase falling from rack: Negligence: Burden of proof.*

To entitle a passenger to recover from a railway company for injuries caused by a suitcase falling upon him from the rack above where he was sitting, he must show by a preponderance of the evidence that the suitcase had been in the rack for such a length of time that in the exercise of ordinary care the company’s employees should have discovered and removed it.

Appeal from a judgment of tke municipal court of Brown county: N. J. Monahan, Judge.

*Reversed.*

*278Plaintiff brought this action in the municipal court of Prown county to recover damages for injuries alleged to have been sustained while riding as a passenger on one of defendant’s passenger trains between Escanaba, Michigan, and Oconto, Wisconsin. The complaint alleged that plaintiff had been on the train about two hours, occupying a seat in the ■coach commonly known as the “smoker;” that as the train was approaching the city of Oconto a trunk or large snitcase fell upon him from the rack directly above the seat in which he sat, striking him in the abdomen. The complaint further alleged that the suitcase was in the rack when plaintiff entered the seat at Escanaba, and that the defendant was negligent in permitting so large an article to be placed in the rack and in allowing it to remain there for so long a time without discovering and removing it and in failing to warn the' plaintiff of the danger incident thereto. The answer was a general denial. The jury returned the following special verdict:

“(1) Was the plaintiff on the 30th day of March, 1914, while riding on one of defendant’s trains, struck and injured by a valise falling from the parcel rack ? *A.*Yes.

“(2) If you answer question No. 1 ‘Yes,’ how long had said valise been in the parcel rack before it fell ? *A.*Don’t know.

“(3) Was said valise of such size and shape that it was .apparent that it could not be safely carried in said parcel rack ? *A.*Yes.

“(4) If you answer question No. 3 ‘Yes,’ then did the conductor or brakeman, or either of them, know that said valise was in the parcel rack for a sufficient time before it fell, so as to be able to remove it ? *A.*No.

“(5) Ought said conductor or said brakeman, or either of them; in the exercise of ordinary care, to have discovered the presence of the valise in the parcel rack in sufficient time to have removed it before it fell ? *A.*Yes.

“(6) Was the said conductor or said brakeman, or either of them, guilty of any want of' ordinary care in failing to remove the valise from the parcel rack before it fell ? *A.*Yes.

“(7) If you answer question No. 3 ‘Yes,’ that said grip *279was of snob apparent size and shape that it could not be safely carried in said parcel rack, then was plaintiff guilty of any want of ordinary, care in failing to see said valise in tbe parcel rack and remove tbe same before it fell ? *A.*No.

“(8) If tbe court is of tbe opinion that tbe plaintiff is entitled to recover, wbat amount of money will compensate him for bis injuries ? *A.*$625.”

Erom a judgment entered on such verdict defendant appeals.

*Edward M. Smart,*for tbe appellant.

Eor tbe respondent there was a brief signed by *Minahan &*Minahan, and oral argument by *Victor I. Minahan.*

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 *280care 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.'