#### The Western and Atlantic Railroad Co. *v.*Esslinger.

If there was negligence on the part of the railroad company in. leaving a portion of its track in such condition as to render coupling cars unsafe at that point, yet as it affirmatively appeared from the plaintiff’s evidence, which was the only evidence showing how and when her husband was killed, that this negligence, if it existed, did not cause or contribute to his death, and the evidence as a whole showing that in all other respects the company was free from negligence, the verdict was unwarranted, and therefore contrary to law. Atkinson, J., dissenting.

April 8,1895.

Brought forward from last term. Code, §4:271(a>'C).

Action for damages. Before Judge Milner. Whitfield superior court. April term, 1894.

Payne & Tye and R. J. & J. McCamy, for plaintiff in error. Maddox & Starr, *contra.*

Simmons, Chief Justice.

The plaintiff brought her action for damages for the homicide of her husband, who was killed while coupling cars on the defendant’s railroad. Three allegations of negligence were made in the declaration: (1) that the cars were moved back too fast; (2) that there was a spike running through the brake-beam, which was dangerous to a coupler; and (3) that the ground where the coupling was to be made was dangerous. As to the first and second grounds, there was no evidence to support them. The main contention was over the third ground. It appears that at the place where the homicide occurred, there was a street-crossing, and the planks of the crossing, between the rails of the defendant’s track, were from one and a half to three inches thick. The ends of the planks were not bevelled, and the dirt seemed to *735have been washed away from them, making it about three inches from the top of the planks to the ground. The deceased undertook to couple the train to a car which was standing on the track at this point, and under which the planks extended for about six feet. The theory of the plaintiff’ was, that the momentum with which the train came back against this ear forced the car beyond the point where the ends of the plank were, while the deceased was between the cars, and that the “step-off” at the ends of the plank caused him to lose his footing and fall, and before he could extricate himself, the cars passed over him, killing him. The only evidence by which the plaintiff' sought to sustain this theory consisted of the opinions of experts and others who did not see the occurrence in question, but thought it might have happened in that manner. These opinions, however, were contradicted by the evidence of the only witness who saw the deceased at the time he was injured. This witness was introduced by the plaintiff, and testified as follows: “As [the deceased] went in to make the coupling, just as the cars hit, his lamp fell out, and I heard him holloa, {Oh Lordy’;” the deceased was then from four to six feet from the end of the plank. According to the evidence of this witness, the injury must have happened at the time the lamp fell and the deceased cried out; and if this was so, it was impossible for the injury to have been occasioned by his stepping off the end of the plank, for he had not arrived at that point. It is true the evidence shows that when the cars stopped he was found on the ground some five or six feet beyond the end of the plank, but it appears that the cars had caught his clothing and dragged him there. It appearing, therefore, from the only evidence showing how and when the plaintiff’s husband was killed, that even if the railroad company was negligent in respect to the condition of the ground at the end of the plank, *736this did not cause or contribute to his death, and the evi■dence as a whole showing that in all other respects the company was free from fault, the verdict was unwarranted, and therefore contrary to law.

*Judgment reversed.*