#### Schell, Administrator, Appellant, vs. Chicago & Northwestern Railway Company, Respondent.

*October 19, 1907*

January *8, 1908.*

*Railroads: Negligence: Death of employee: Burden of proof: Evidence: Oourt and jury.*

*1.*In an action for the negligent killing of an employee of a rail-i road it devolves upon the plaintiff, under the burden of establishing the facts in issue, to produce evidence tending to show with reasonable distinctness how decedent came to his death.

2. Such burden is not met by proof which is as consistent with a theory that the death was due to a cause not actionable as with a theory that it was due to an actionable cause.

3. In such state of the proof the case fails to come within the proper province of the jury.

Appeal from a judgment of the circuit court for Monroe county: J.'J. Eruit, Circuit Judge.

*Affirmed.*

*143Tbe plaintiff, as administrator of tbe estate of Samuel H. Smith, deceased, brings this action to recover the damages caused to his widow by the alleged wrongful acts of the defendant which are alleged to have caused decedent’s death. The complaint alleges that decedent was a resident of this state, and on the 11th day of December, 1903, was in the employ of the defendant company as a watchman at the south entrance to a tunnel on defendant’s railroad in Monroe county, and charges that his death was caused by the defendant’s train, consisting of two engines and two cabooses, in passing through this tunnel. The specific negligence charged is that defendant omitted to provide proper and reasonably safe couplings on these cars and that it neglected to use ordinary care in inspecting and keeping these couplings in repair; that the brakes on said cars were not reasonably safe and appropriate for the purposes for which they were used; that defendant failed and neglected to equip this train with appliances which would automatically apply the brakes whenever the ears became uncoupled and stop the train and cars, which would in this case have prevented the accident to the decedent; that defendant neglected to furnish a reasonably safe roadbed through such tunnel, and that such defective roadbed caused one of the cabooses to become detached from the train, and that such caboose caused decedent’s death; and that the train in question was run at so high and dangerous a rate of speed through this tunnel as to cause the detachment of the caboose. It is also alleged that defendant did not furnish decedent with a reasonably safe place in which to work, and failed to warn and instruct him as to the unusual and extraordinary danger of his employment from detached cars following trains passing his place of employment. Defendant denied being guilty of negligence in any of the respects charged in the complaint.

It appeared that the decedent had been in the employ of the defendant as watchman at the south entrance of this tun*144nel for some time before the accident; that in tbe performance of Ms duties he was required to be stationed on the north side of the track near the south entrance doors of the tunnel; that this tunnel is about three quarters of a mile long, and that a watchman is also stationed at the north entrance doors. It is each watchman’s duty to- give notice to the other of trains about to enter the tunnel as well as of their exit from the tunnel. When trains approach to pass through the tunnel the watchman at that end of the tunnel would give notice by electric signals to the watchman at the opposite end, and he was required to respond thereto and to inform the other whether or not there was a clear track on his side of the tunnel. If clear, the watchman at the end of the tunnel to which the train was approaching would open the doors of the tunnel for the train’s passage. After the decedent had opened the doors of the tunnel for the passage of a train it was his duty to go from his position on the north side of the track, in the regular course of his duty, to take a position on a platform on the south of the track about 150 feet distant from the tunnel doors, and therefrom signal to the engineer of the passing train. In so doing he necessarily crossed over the track. After a train had passed out of the tunnel at his doors he was required to report to.the other watchman that the train had cleared the tunnel. Between 11 and 12 o’clock on the evening in question the decedent was notified that a train of two engines and two cabooses was approaching the north end of the tunnel. He answered that everything was all right, and thereupon the train passed into the north end of the tunnel. No report was made by the decedent to the north-end watchman of its exit at the south end. Later in the night the north-end watchman learned from the operator at Summit, a station about a mile south of the tunnel, that the train had passed Summit. About an hour after the train had left the tunnel Smith was found dead, near to and south of the track, and not far from the place where he *145was required to be stationed in signaling tbe passing engineer. His skull over tbe left eye bad been fractured and one ■of tbe bones of an arm was broken. It appears that tbe rear caboose of tbe train bad become detached, and that it was found standing on tbe track between tbe south entrance of tbe tunnel and Summit station, 200 or 300 feet north of Summit. Tbe track through tbe tunnel from north to south and toward Summit was an ascending incline. Tbe smoke from engines passing through tbe tunnel would naturally collect near tbe south opening and extend into tbe cut southward to where decedent was found.

At tbe conclusion .of tbe evidence tbe court directed a verdict for defendant and awarded judgment accordingly, This is an appeal from such judgment.

Eor the appellant there were briefs by *Masters, Graves & Masters,*and oral argument by *B. B. Graves.*

Eor tbe respondent tbe cause was submitted on tbe brief of *Edward M. Hyzer.*

Tbe following opinion was filed November 5, 1907:

Siebeckeb, J.

An examination of tbe evidence at once leads to tbe inquiry: How did the decedent come to bis death ? Appellant insists that tbe facts and circumstances adduced tend to show to a reasonable certainty that be was struck by tbe detached caboose as be was about to cross tbe track in tbe regular course of tbe performance of bis duties, while be was going from bis proper position for signaling the engineer on tbe south of the track, and some distance from tbe tunnel, to bis appointed station on tbe north of tbe track near tbe doors of tbe tunnel, there to await the arrival of tbe next train. There is no direct proof on tbe subject. Tbe claim is that tbe facts point persuasively to tbe conclusion that decedent must have started from bis usual position on tbe south of tbe track to recross it on tbe way to tbe tunnel doors when be was struck by the detached caboose. But is this well *146founded? Are not the facts and circumstances of equal probative force in support of the inference that he was struck by one of the engines or the other caboose, or that the injury was inflicted in some other and wholly unaccountable way, or that his death was due to some purely accidental means, without the fault or neglect of any one ? A consideration of the situation presented by the facts and circumstances leaves the cause of decedent’s death shrouded in such uncertainty that it cannot be.said that it was due to defendant’s negligence. It devolved on the plaintiff, under the burden of establishing the facts at issue, to produce evidence which tended to show with reasonable distinctness how decedent came to his death. This burden is not met by proof which is as consistent with a theory that his death was due to a cause not actionable as with a theory that it was due to an actionable cause, and in such a state of the proof the case fails to come within the proper province of a jury. We deem the case to be within the decisions in the following cases, and are persuaded that the evidence is not sufficient to warrant submission of plaintiff’s case to a jury and that the nonsuit was properly granted: *Sorenson v. Menasha P. & P. Co.*56 Wis. 338, 14 N. W. 446; *Hyer v.*Janesville, 101 Wis. 371, 77 N. W. 729; *Chybowski v. Bucyrus Co.*127 Wis. 332, 106 N. W. 833, and cases cited.

*By the Court.*— Judgment affirmed.

A motion for a rehearing was denied January 8, 1908.