The opinion
DISSENTING OPINION.
NEILL, Associate Justice.
I differ from the majority of the court in their conclusions of fact, and will in a few words state the reason why I can not agree with them.
The burden of proving every essential fact necessary to make out her case was throughout the trial upon the plaintiff. Among the essential facts she was burdened with proving was that the negligence of the defendant was the proximate cause of her husband’s death. If she failed to establish the affirmative of this issue, she failed in her case. In proving this essential fact she was required to bring her proof to the required height and carry her case beyond an equilibrium of proof. In other words, it was for her to show that the evidence on the affirmative of this issue established it as a fact; for unless it was shown to be a fact that deceased’s death was
proximately caused
by defendant’s negligence, or negligence attributable to it, her whole case fell to the ground. It was as essential for her to prove this fact as it was for her to prove that deceased was her husband.
In determining whether she has discharged this burden, I am willing to concede for the purposes of this case that defendants’ servants operating the handcar failed to use the means at hand to stop it (though it seems to me the evidence preponderates the other way) and that such failure was negligence attributable to defendant. But I do not and can not believe from the evidence that if all the means at hand had been used the ear would have been stopped in time to have averted the accident. If it could not have been, then the negligence of the man in fail
*95
ing to use the means at hand to stop it was not the
proximate
cause of Perry’s death, but it ensued from an unavoidable accident.
Upon this issue plaintiff rested her case on the testimony, recited in the majority opinion, of Simon Walker. This witness was present and testified at the trial that the car could not have been stopped after the order was given before reaching the board on the track which caused Perry to be thrown from the car. If the testimony had closed here, could it be said from it that the fact of deceased’s death was proximately caused by the failure óf the men on the car to use the means at hand to stop it after the order was given? I do not think so. For it can’t be told whether the testimony of the witness taken by depositions or that given orally upon the trial is correct. His testimony upon the issue given on the different occasions is in direct conflict and I don’t think tends in the least to prove or disprove the essential fact at issue.
The six other men who were on the hand car when the accident happened, testified that the car could not have been stopped, after the order was given by Perry, by the use of the means at hand in time to have averted the accident. Each of them testified with the utmost minutia as to all the facts and circumstances incident to and attending the accident; and the testimony of every one of them is perfectly consistent with the fact that it was impossible to stop the car after the order was given before it reached the board. This, in my opinion, is absolutely inconsistent with the theory that it could have been stopped by the use of all the means at hand in time. To support the affirmative of this issue, there is only the opinion of an expert, J. A. Schackel, who was not on the ground and knew nothing of the facts and circumstances, which is taken by the majority of the court as outweighing the opinions of the six witnesses to the accident whose opinions are corroborated by all the facts and circumstances attending the catastrophe, and who were experts themselves in operating hand cars.
I say that plaintiff has only the opinion of Schackel, for I don’t think the declarations of the deceased as testified to by Coffin are of any probative force whatever upon this issue. These declarations were not
res gestae,
for they were, if as narrated by the witness, made late at night, after deceased had been carried to the section-house long after and away from the place where the accident occurred. In the statement of deceased he does not say, or undertake to say, nor can it be inferred from what he did say, that the car could have been stopped after he gave the order in time to have averted the accident. Besides it may be doubted whether the statement made by deceased was as detailed by Coffin, in view of the fact that two other witnesses who heard the conversation (McNeil and Turner) testified that Mr. Perry, upon being asked how the accident occurred, stated, in substance, that he was in the front end of the car coming down hill fast and there was a piece of plank or something on the track and he tried to kick it off and his foot got hung and jerked him off or he stumbled and fell off.
It may be that I have, in conceding that the men on the car were negligent in failing to use every means to stop it after Perry gave the order, conceded more than I ought. For it can hardly be deemed negligence to fail to use any or every means to do that which the facts show it is impossible to do.
*96
Having concluded, from reading and carefully considering every word of the testimony found in the record, that the evidence is wholly insufficient to show, even if negligence of the defendant is conceded, that such negligence was the proximate cause of Perry’s death, I deemed it my duty to state such conclusion and my reasons for it. I have the highest regard for the opinion of my associates, and they may be right in their conclusions and I may be wrong, but I don’t think so.
As the law is not “a beautiful and ineffectual angel, beating in the void his luminous wings in vain,” but is a creature of man dwelling on the earth with men, touching them at every point in all their relations and affairs of life, deciding and dispensing justice upon evidence, never giving judgment without proof of essential facts, I can not, in the absence of evidence sufficient to establish such a fact, give my consent to the affirmance of the judgment.
Writ of error refused.