The opinion
EDMONDS, J., Dissenting.
As I read the record in this case, the evidence, even with the statement of Showalter, which I agree was part of the res gestae, does not support *480 the verdict. My reasons are based upon these facts, which stand undisputed:
Showalter, the deceased, was the senior man of the train crew and in the absence of the conductor was directing their movements. As the two cars started down the snake-lead, Showalter boarded the refrigerator car, the leading one of the two, at its forward end and went to the top. He had his light and his brake club with him. His purpose was to control the movement of those ears by using the brake. When last seen, he was on top of the refrigerator car with his light. Neither he nor his light was seen again until he was found lying underneath the gondola car, half way between the two rails, and run over by the leading truck of that car.
As the two cars moved along the snake-lead Parrott, another member of the crew, got on the footboard of the tender and the engine backed slowly down the track following the cars. There is no claim that this was an improper movement. Parrott had his light, and was at the position where the tender would collide with anything which was on the track ahead of it. Concerning a coupling of the engine and the gondola, be said that he could not remember whether one was made.
When Parrott found Showalter under the car he went up to him and said, “How in the world did it happen, Joe?” Showalter replied: “I got knocked off. I am all done, both legs cut off.’’ There was nothing else said. It is significant that this question was asked by the man who was responsible for the movements of the engine and was controlling it by his signals. He was the first one to see Showalter. The spontaneous exclamation made by the man who would know most about the car movements indicates that Parrott did not know what had happened. The only reply by Showalter to his question was, 111 got knocked off. ’ ’
The respondent construes this reply to mean that the locomotive knocked him off. However, Showalter knew that Parrott was a member of the crew, but there was not one word of accusation. He did not say that the engine had bumped the cars and lmocked him off or that the accident was the fault of any member of the crew.
Unquestionably, Showalter left his position on the moving refrigerator car, walked along the top of that car and climbed down or fell down between the refrigerator car and the gondola car. Did he move from the forward end of the re *481 frigerator for the purpose of going to the brake stand on the gondola car, or did he walk across the car for some other reason? Whatever his purpose, he fell between the two cars being controlled by him. How he fell is entirely a matter of speculation.
Parrott’s testimony concerning his first knowledge that an accident had occurred is most significant. He said that, he heard Showalter shout; it was not a shout of surprise, but that of a man who had been already injured, and was in pain. Moreover, his testimony is that he heard a shout while the locomotive was backing. He also said that only one pair of trucks had passed over him.
Respondent contends that certain measurements prove that the engine following the two cars collided violently with them, knocking Showalter off. She argues that although Parrott was unwilling to testify that he violated his duty so as to permit the engine to contact the cars ahead, he was not unwilling to testify to facts which conclusively demonstrate that there must have been such a collision. But an examination of the record does not indicate that the only reasonable conclusion to be drawn from Parrott’s testimony points to a contact. He testified: “We were near the gondola, but whether we had made a coupling into the gondola or not, I cannot remember at this time, the step I was standing on did not get much beyond the cross-over switch; assuming that the gondola and refrigerator cars had made a coupling with the cars, the east end of the gondola would not be as far as 40 to 50 feet from the switch. It would possibly be 8 or 10 feet from the switch; I said I found Showalter under the center of the car. . . . With relation to the cross-over and lower 4 track at the time I heard that holler I was near the switch, or just west of the switch of lower 4 track.” This is substantially all the evidence as to the position of the cars at the time Showalter was injured.
Respondent argues that because Showalter must have gotten under the car twenty feet before it came to rest, that the east end of the gondola car must necessarily have been in front of or a few feet to the east of the switch, and because Parrott testified that when he heard the cry of pain, the west end of the tender was near or just west of the switch, it follows that there must have been a collision. However the measurements were approximate and there is no assurance that Par *482 rott heard the first cry of pain or that if he did, whether Showalter had called as he was falling or after he had been run over.
The burden of proof is on the plaintiff to show negligence, but there is no substantial evidence that the engine and tender were anywhere near the two cars. The words used by Showalter do not prove that he was knocked off by the engine. Indeed the evidence shows other facts which make his explanation entirely consistent with the happening of the accident in other ways. For example, it was the practice in the yard to use clubs in working the brakes. It is entirely possible that the spinning of a brake wheel or a lurching of the cars as they passed over the frogs and switches, may have knocked Showalter off the car. Certainly it is just as consistent with the evidence that Showalter was knocked off by the brake or a movement of the cars as it is that he was knocked off by the contact of the engine and under the Federal Employers’ Liability Act, where the evidence is wholly circumstantial, to support a verdict it must exclude all other reasonable inferences. If there are other equally reasonable inferences, no one of them can be said to preponderate over the others.
This rule was succinctly stated by the Supreme Court of the United States in Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 663 [21 Sup. Ct. 275, 45 L. Ed. 361 ], where it was said: “ ... it is not sufficient for the employee to show that the employer may have been guilty of negligence— the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury,. for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that, the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.” The rule was also stated in Tucker Stevedoring Co. v. W. H. Gahagan, Inc., 6 Fed. (2d) 407, at *483 410, as follows: “Yet sound reason, as well as settled law, demands that a conclusion shall not be based upon circumstantial evidence alone, unless the facts relied upon are of such a nature and are so related to each other as to exclude every other fair and reasonable hypothesis. If the facts are consistent with either of two opposing theories, they prove neither.” (See, also, Atchison, T. & S. F. R. Co. v. Saxon, 284 U. S. 458 [52 Sup. Ct. 229, 76 L. Ed. 397 ]; United States F. & G. Co. v. Des Moines Nat. Bank, 145 Fed. 273 .)
In my opinion, the decision of the District Court of Appeal was correct and the judgment should be reversed.
Rehearing denied. Edmonds, J., and Houser, J., voted for a rehearing.