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took place three times; the last time being about 11 o'clock in the forenoon. On this point witness Bywater testified, and his testimony is not disputed: “We passed that switch before 338 the accident on that day about three times, and everything appeared to be all right. The rails were continuous for the main line on each of these occasions. Before the accident we passed over the switch about 11 o'clock the last time, and the rails were safe for the passage of the train. There was nothing to indicate that there was anything wrong with the track.” And again he says, referring to the switch: “I did not manipulate it on that day at all. We had no occasion to use the house track on that day. .... All our work was done over the main line."

Counsel for appellants, in their brief, say: It is certain that the switch was open. It is equally certain that some one was responsible for its condition. From this evidence there must be one of three inferences deduced as to who was responsible for the open switch. It was either the defendant company, the deceased, or some third person. One or the other of these inferences must necessarily arise from the proven facts that the switch was unlocked and that the switch was open.” And then, by way of argument, they say: “While it might be said that either one inference or the other might be deduced from the evidence by a reasonable person, still it seems to us that the inference that the defendant company was responsible is the more reasonable." It will be seen that it is practically conceded that the question as to whether defendant company or some other party left the switch open is a matter of conjecture and speculation. The evidence to which we have referred, however, instead of pointing to either defendant company or to the deceased, rather tends to show that neither of them was responsible for the open switch. Therefore, the allegation in the complaint that the defendant left the switch open remains wholly unproved. It was not sufficient for appellants to show that defendant company may have been guilty of this particular act of negligence. It was incumbent upon appellants to produce some substantial evidence which would at least tend to fasten the blame on defendant for the misplaced switch which caused the accident. Where, as in this case, the evidence leaves the matter uncertain as to whether the defendant or some unknown party is responsible 339 for the act of negligence alleged, a recovery cannot be had. In the case of Patton v. Texas & P. R. Co., 179 U. S. 658, 21 Sup. Ct. Rep. 275, 45 L. ed. 361, Justice Brewer, speaking for the court, says: “It is not sufficient

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for the employé 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”: 2 Labatt on Master and Servant, 837; Fritz v. Salt Lake etc. Electric Light Co., 18 Utah, 493, 56 Pac. 90; Sorenson v. Menasha Paper & Pulp Co., 56 Wis. 338, 14 N. W. 446; Deserant v. Cerrillos Coal R. Co., 9 N. M. 495, 55 Pac. 290; Shaw v. New Year Gold Min. Co., 31 Mont. 138, 77 Pac. 515; Dobbins v. Brown, 119 N. Y. 188, 23 N. E. 537.

The important question, therefore, is: Was the leaving of the switch unlocked the proximate cause of the derailment of the engine in question? We think this question must be answered in the negative. The evidence, we think, conclusively shows that the unlocked condition of the switch was not the proximate cause of the death of the deceased, nor did it in any manner contribute thereto. The record shows that, before the continuity of the rails on the main line was broken by the misplacement of the switch between 11 o'clock A. M. and 3:20 o'clock P. M. on the day in question, the main track where it passed the switch was “absolutely safe, even if the lock were unlocked, so far as the trains passing over it was concerned”; that “no train running over the rails could throw it out”'; and that it would require an exertion equivalent to from "fifty to seventy-five pounds” to throw open the switch and thereby break the continuity of the rails on the main line. Under these conditions it is evident that the unlocking of the switch and leaving it in that condition could not in any degree have rendered the track dangerous or unsafe for the passage of trains; for, had it not been for the subsequent and independent act by which the switch was turned and the continuity of the rails on the main track thereby 340 broken, the accident in all probability would not have happened. In other words, there was not such an unbroken connection between the leaving of the switch unlocked and the subsequent misplacement of the rails as to make it one continuous operation. And even if it be assumed, for the purposes of this case, that the unlocking of the switch in the first instance was a cause without which the accident would not have occurred, it was at most a remote cause; the direct and proximate cause of the accident being the subsequent misplacement of the switch.

The law is well settled that an act or omission, in order to constitute negligence for which an action will lie, must directly, as its natural consequence, produce injury to another. Cooley, in his work on Torts, second edition, pages 73-76, says: “It is not only requisite that damage actual or inferential, should be suffered, but this damage must be the legitimate sequence of the thing amiss. The maxim of the law here applicable is that in law the immediate, and not the remote, cause of any event is regarded, and in the application of it the law rejects, as not constituting the foundation for an action, that damage which does not flow proximately from the act complained of. In other words, the law always refers the injury to the proximate, not the remote cause. The explanation of this maxim may be given thus: If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last proximate cause, and refuse to trace it to that which was more remote. Continuing, the author says: “A writer on this subject has stated the rule in the following language: If the wrongs and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated as cause and effect to support an action.”

In the case of Aetna Ins. Co. v. Boon, 95 U. S. 117, 24 L. ed. 395, it is said: “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones.'

In the case of Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256, the court says: 341 “The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation! Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? .... It is generally held that in order to warrant a finding that negligence, or an act not

amounting to a wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of attending circumstances”: Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583; Bailey on Master's Liability to Servants, p. 420; Cole v. German Sav. & Loan Soc., 124 Fed. 113, 59 C. C. A. 593, 63 L. R. A. 416; Claypool v. Wigmore, 34 Ind. App. 35, 71 N. E. 509; Smith v. County Court, 33 W. Va. 713, 11 S. E. 1, 8 L. R. A. 82, and cases cited in note; Afflick v. Bates, 21 R. I. 281, 43 Atl. 539.

Applying the law as declared by the foregoing authorities to the facts in this case, we are clearly of the opinion that the leaving of the switch unlocked was not the proximate cause, nor was it a concurring cause, of the accident; and, as the evidence fails to show that the defendant company displaced and left the switch open on the occasion referred to, the trial court did not err in granting defendant's motion for a nonsuit.

The judgment is affirmed, with costs.
Frick, J., concurs.

STRAUP, J. I think the decisive question is insufficiency of evidence to charge the defendant with the commission of the acts of negligence alleged in the complaint, rather than the proximate or intervening cause of injury. On that ground I concur in the judgment of affirmance.

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The Doctrine of Proximate Cause is the subject of a note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 807.

Presumptions of Negligence from the happening of an accident are discussed in the note to Cincinnati Traction Co. v. Holzenkamp, 113 Am. St. Rep. 986; presumptions of the exercise of due care are discussed in the note to Chicago etc. Ry. Co. v. Wilson, 116 Am. St. Rep. 108.

ROGERS v. RIO GRANDE WESTERN RAILWAY COM

PANY.

(32 Utah, 367, 90 Pac. 1075.] NEGLIGENCE, Action, When will Lie for.–Proof of negli. gence and of injury does not warrant a recovery. In addition thereto, the party on whom rests the burden of proof must show by competent evidence that the negligence proved was the proximate cause of the injury complained of, or, where there was more than one cause, that it was at least one of the causes. (p. 878.)

CONTRIBUTORY NEGLIGENCE Prevents a Recovery, although otherwise a complete prima facie right to recover is shown. (p. 878.)

RAILWAYS–Negligence.—The Mere Failure to Sound a Whistle or Ring a Bell is not sufficient to authorize a recovery, where one riding in a buggy and crossing the track is struck by a train and killed. It must further appear that such failure was a proximate cause of the accident. (p. 878.)

JURY TRIAL-Instruction, Construction of.—To give an instruction its proper effect, it must be considered and construed in connection with all the other instructions given. (pp. 879, 880.)

RAILWAYSNegligence, Presumption of the Exercise of Due Care, When Rebutted.—Though a person approaching a railway will be presumed to be in the exercise of due care, this presumption may be rebutted, and it is proper to instruct the jury that the presumption is overcome, if it appears from the evidence that if the person injured had looked or listened before driving on the crossing, he must have seen or heard the train approaching. (p. 880.)

NEGLIGENCE-Presumption of Due Care.—The presumption that a person exercised due care in approaching and entering upon a railway crossing is well founded. (p. 881.)

JURY TRIAL-Instruction, Refusal of Where not Based on the Evidence. It is proper to deny an instruction that the jury may take into consideration, on the question of contributory negligence, any testimony relating to the deceased being blinded and dazzled or deceived by the light from the headlight of the locomotive relating to the speed of the train, if there no evidence that he saw the headlight at all, and whether he saw it or not is a mere conjecture. (p. 881.)

DEATH OF SON, Damages for.—The measure of damages in an action for the death of a son claimed to have been due to the negligence of the defendant railway company is not the pecuniary value of his life, but what was the pecuniary loss suffered by the plaintiffs. This is not limited to mere contribution in money, but may consist of the various elements that enter into the domestic relations of parent and child living in one family, or otherwise. (p. 882.)

JURY TRIAL-Instruction, When not Deemed Prejudicial.If in an action by parents to recover for the death of their son, the court gives instruction respecting the measure of damages which may be erroneous, this is not a prejudicial error, if the jury finds in favor of the defendant, and their verdict can only be reconciled with the instructions given on the theory that they found the defendant was not guilty, or that the decedent was guilty of such contributory negli gence as precludes a recovery for his death. (p. 882.)

W. R. White and Powers & Marioneaux, for the appellants. Van Cott and Allison & Riter, for the respondent.

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