The opinion of the court was delivered by: MCVICAR
This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages from the defendant, by reason of alleged negligence which caused the death of Mike Lukon, an employe of defendant. At the conclusion of the evidence, defendant requested the Court to direct a verdict in its favor, and also, submitted a point for binding instructions. This was refused. The jury returned a verdict in favor of the plaintiff in the sum of $2,876.80. The action is now before us on defendant's motion for an order directing that the verdict and judgment thereon be set aside, and that judgment be entered in favor of the defendant, also, on plaintiff's motion for a new trial. The latter motion was not pressed at the argument.
Plaintiff sets forth in her complaint, that she is executrix of the estate of Mike Lukon, deceased; that on November 16, 1938, said Mike Lukon was a section hand of the defendant, and as such, was engaged at the time of the injuries described therein, in interstate commerce; that Lukon was returning from his work, and while walking on the premises of the defendant, in a westerly direction, on a path on the southerly side of its right of way in the City of Jeannette, Westmoreland County, Pennsylvania, a lump of coal from a train operated in an easterly direction, struck Lukon, causing a fracture of his skull and injuries which resulted in his death the following day.
The negligence charged was the piling of coal on the locomotive tender loosely, or so high that a lump thereof became dislodged and struck Lukon, and in failure to make a proper inspection of how said coal was loaded.
Defendant contends that the evidence was insufficient to support a finding that Lukon's injuries resulted from a cause for which defendant can be held liable to the exclusion of other equally probable causes for which the defendant would not be liable in this case.
In Pfendler v. Speer, 323 Pa. 443, 448, 185 A. 618, 620, the Supreme Court of Pennsylvania laid down the following rule: "Circumstantial evidence to sustain a verdict must be so strong as to preclude the possibility of injury in any other way, and provide as the only reasonable inference the conclusion for which the contention is made."
It is well established in Pennsylvania, that where the plaintiff's right to recover depends upon circumstantial evidence, that plaintiff must establish a cause of action for which the defendant is liable to the exclusion of other equally probable causes for which there is no liability. Smith v. Pennsylvania R.R. Co., 2 Cir., 239 F. 103; Dangelo et al. v. Pennsylvania R.R. Co., 301 Pa. 579, 585, 152 A. 743; Erbe v. Philadelphia R.T. Co., 256 Pa. 567, 570, 100 A. 966; Raftery, Adm'r v. Pittsburgh & W. Va. Ry., 284 Pa. 555, 131 A. 470; Skrutski v. Cochran et al., 341 Pa. 289, 19 A.2d 106.
In New York Central Railroad Company v. Ambrose, Administratrix, 280 U.S. 486, 489, 490, 50 S. Ct. 198, 199, 74 L. Ed. 562, which was an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the Supreme Court, in its opinion stated:
"In any view of the matter, the respondent (plaintiff), upon whom lay the burden, completely failed to prove that the accident was proximately due to the negligence of the company. It follows that the verdict rests only upon speculation and conjecture, and cannot be allowed to stand. Chicago, M. & St. P. Ry. v. Coogan, 271 U.S. 472, 478, 46 S. Ct. 564, 70 L. Ed. 1041, and cases cited.
"The utmost that can be said is that the accident may have resulted from any one of several causes, for some of which the company was responsible, and for some of which it was not. This is not enough. See Patton v. Texas & Pacific R. Co., 179 U.S. 658, at page 663, 21 S.ct. 275, 277, 45 L. Ed. 361, where this court said:
"'The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employe to establish that the employer has been guilty of negligence. * * * It is not sufficient for the employe 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 plaintiff.'"
In Pennsylvania Railroad v. Chamberlain, Administratrix, 288 U.S. 333, 339, 53 S. Ct. 391, 393, 77 L. Ed. 819, which was an action under the Federal Employers' Liability Act, the Supreme Court stated: "We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover."
The Supreme Court, also, on page 340, of 288 U.S., on page 393 of 53 S. Ct., 77 L. Ed. 819, quoted with approval a Massachusetts case, Smith v. First Nat. Bank, 99 Mass. 605, 97 Am.Dec. 59, wherein it was stated: "their being several inferences deducible from the facts which appear, and equally consistent with all those facts, the plaintiff has not maintained the proposition upon which alone he would be entitled to recover. There is strictly no evidence to warrant a jury in finding that the loss was occasioned by negligence and not by theft. When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong.'"
See, also, Atchison, Topeka & Santa Fe Railway Company v. Toops, Administratrix, 281 U.S. 351, 50 S. Ct. 281, 74 L. Ed. 896, which was an action under ...