1. To justify recovery in an action under the federal Employers'
Liability Act, there must be evidence from which the jury could
find that the negligence complained of was the cause of the injury.
P. 281 U. S.
2. The jury may not be permitted to speculate as to the cause of
the injury, and the case must be withdrawn from its consideration
unless there is evidence from which it may reasonably be inferred
that the injury was caused by the employer's negligence.
3. Evidence considered, and found insufficient to go to the jury
on the question whether the death of a railroad conductor, who was
run down by freight cars during a switching operation at night and
in the absence of eye witnesses, was due to negligence in moving
the cars without signal and without placing a light or flagman upon
them. Pp. 281 U. S.
128 Kan. 19 reversed.
Certiorari, 280 U.S. 542, to review a judgment affirming a
recovery for death in an action under the federal Employers'
MR. JUSTICE STONE delivered the opinion of the Court.
Respondent, plaintiff below, brought suit in the district court
of Reno county, Kansas, to recover under the federal Employers'
Liability Act for the death of her
Page 281 U. S. 352
intestate. Judgment in her favor was affirmed by the Supreme
Court of Kansas, 128 Kan. 189, 277 P. 57. This Court granted
certiorari October 21, 1929, on a petition which urged as grounds
for allowance of the writ that there was no evidence of negligence
in the case or that any act of petitioner caused the death.
Decedent was a conductor in charge of petitioner's freight
train, engaged in interstate commerce, while en route easterly from
Elkhart to Dodge City, Kansas. He was killed near the station at
Rolla, Kansas at about 1 o'clock in the morning, in the course of a
switching operation under his direction. At that point, north of
the main line, and connected with it by switches, is a "passing
track" with an extension at its easterly end known as a "stock
track." South of the station, which is south of the main line, is a
switching track, referred to as an "elevator track," which forms a
junction with the main line some three hundred feet or more east of
the station platform.
On the night of the accident, two switching operations were to
be carried out by deceased at Rolla. The first, which was
successfully completed, consisted of removing four loaded grain
cars from the elevator track and coupling them, deceased assisting,
to the train standing west of the station on the main line. The
second involved the removal of fifteen empty grain cars, coupled to
twelve stock cars, from the passing and stock tracks to the main
line, and thence "kicking" the grain cars onto the elevator track
-- that is, the train of grain and stock cars was to be pushed by
the engine westerly along the main line and the fifteen grain cars
uncoupled from the westerly end of the stock cars while still in
motion and before the stock cars had reached the switch to the
elevator track, thus propelling the grain cars from the main line
to the elevator track. The stock cars were then to be kicked back
onto the passing track by a similar movement, after
Page 281 U. S. 353
which the engine was to be coupled to the grain cars standing on
the elevator track and they were to be spotted at desired locations
on that track. Under the rules of petitioner, deceased was required
to attend personally to these switching movements.
There were no eyewitnesses to the accident. Deceased was last
seen alive, standing, lantern and train book in hand, on the east
end of the station platform. Plaintiff's own witnesses testified
without contradiction that, shortly before one of the two brakemen
of the train crew had read to the other and to deceased the
switching list calling for the movement of the grain cars, and had
then said that he would kick the cars onto the elevator track, to
which deceased replied: "All right, I will look out for them."
After the grain cars had been kicked onto the elevator track and
the stock cars onto the passing track, the engine was coupled to
the grain cars and the spotting movement begun, when the body of
the deceased was discovered. It was lying under the engine tender
diagonally across the elevator track, with the shoulder against a
"derail" about one hundred and eighty feet west of the switch,
connecting the elevator track with the main line, and about the
same distance from the point on the platform where decedent had
last been seen alive. His feet were toward the north, his head and
arm had been severed from his body, and lay just south of the
track. His cap, lantern, and lead pencil were lying near, together,
south of the elevator track two or three feet from the south rail.
His train book was found lying in the center of the track between
the rails. The surface of the track between the rails showed that
his body, after it had fallen to the ground, had been moved or
dragged westward two or three feet until his shoulders were jammed
against the derail. There were no marks of flesh or blood on any
part of the first grain car indicating that it had come into
contact with the body of the deceased. There was uncontradicted
Page 281 U. S. 354
that such marks of flesh and blood were found upon the south
wheels of each of the succeeding fourteen grain cars and the engine
It was controverted whether, within the meaning of printed rules
of petitioner, the place of the accident was at a "station" or in a
"yard." The rules required that, when cars were pushed by an
engine, "except when shifting or making up trains in yards," a
flagman should be placed on the front of the leading car so as to
signal the engineer in case of need, and that a white light must be
placed on the leading car at night. No flagman or brakeman and no
light was placed on the leading grain car. Owing to the location of
a curve and cut through which the grain cars passed in order to
reach the elevator track, it was impossible for the engineer or the
two brakemen to see deceased or his lantern at the point where his
body was found. There was evidence that no warning signal by bell
or whistle was given in the course of the kicking movement.
It is the theory of the respondent, conforming to the findings
of the jury in its special verdict, that deceased, while crossing
the track near the derail, where, according to some of the
testimony, the roadbed was overgrown with weeds and so thinly
ballasted that the track had become "skeletonized," was knocked
down by the leading grain car, and killed by that and the
succeeding cars passing over him, and that his death was
attributable to negligence in carrying out the kicking movement of
the grain cars without signal and without placing a flagman or a
light on them.
But proof of negligence alone does not entitle the plaintiff to
recover under the federal Employers' Liability Act. The negligence
complained of must be the cause of the injury. The jury may not be
permitted to speculate as to its cause, and the case must be
withdrawn from its consideration, unless there is evidence from
Page 281 U. S. 355
the inference may reasonably be drawn that the injury suffered
was caused by the negligent act of the employer. Patton v.
Texas & P. Ry. Co., 179 U. S. 658
New Orleans & N.E. R. Co. v. Harris, 247 U.
, 247 U. S. 371
St. Louis-San Francisco Ry. Co. v. Mills, 271 U.
, 271 U. S. 347
Chicago, M. & St. P. Ry. v. Coogan, 271 U.
; New York Central Railroad Co. v.
Ambrose, 280 U. S. 486
Even though we assume that, in all the respects alleged, the
petitioner was negligent, the record does not disclose any facts
tending to show that the negligence was the cause of the injury and
death. The only evidence relied upon by respondent to account for
the deceased's presence at the point of the accident was that
already stated, which indicated that he had proceeded to the
elevator track in order, as he had said, to "look out" for the
kicked cars, whether by climbing onto them and controlling their
movement on the elevator track, as is usual in such movements, or
by assisting in the spotting movement to be later carried out, can
only be inferred. It is the theory of respondent that he attempted
to cross the track so as to be in a position to signal the engineer
who was on that side of the train. But, as the grain cars already
were, or about to be, uncoupled from the train, there was evidently
no immediate purpose in his being so located. What actually took
place can only be surmised. Whether he was run down on the track by
the first car, or he attempted unsuccessfully to board the train on
one side or the other or succeeded, and in either case finally came
to his death by falling under or between the moving cars is a
matter of guesswork.
Even though we make the doubtful assumption that the train was
not within a "yard," and so was required to signal its movements,
it is plain that deceased and his train crew treated the place as a
yard where warning of switching movements was not required. On
respondent's own theory, deceased was fully cognizant of the
Page 281 U. S. 356
contemplated movement. He knew that the grain cars were to be
kicked onto the elevator track where he went to meet them, and knew
that train crew, consisting of only two brakemen and the lanterns
which they carried, would be needed in attending to the switching,
signaling, and uncoupling of cars in order to kick the train of
stock cars onto the passing track, and that the grain cars for
which he was to "look out" would be without brakeman or warning
light. It is presumed that deceased proceeded with diligence and
due care. Looney v. Metropolitan R. Co., 200 U.
, 200 U. S. 488
movement of the fifteen cars to and across the switch and onto the
elevator track in a quiet neighborhood on a still night cannot be
assumed to have given no warning sounds of their approach.
All these factors, taken together, render highly improbable the
theory of respondent that deceased was run down by the grain cars
while he was crossing or standing upon the track, and they give
sharp emphasis to the absence of any proof of the fact,
indispensable to respondent's case, that deceased, while standing
on or attempting to cross the track, was struck by the leading car.
There is no evidence to suggest that the body, after falling to the
ground, was moved or dragged more than two or three feet. There
were no marks of blood or flesh of the decedent upon any part of
the leading car, although such marks were found on most, if not
all, of the cars following. The kicked grain cars were moving
slowly when they passed the switch to the elevator track as they
came to a stop two or three car lengths west of the derail. It is
true that there was medical testimony that, in the case of crushing
injuries, bleeding might not immediately ensue, but the length of
this period of delay was not mentioned, and the testimony given was
not stated by any witness to be applicable to injuries of the
extent and character suffered by the deceased. It does not
Page 281 U. S. 357
for the absence from the leading car of the other evidences of
the injury found on the other cars. As evidence to support the
special finding of the jury that the deceased was struck by the
first car, this testimony is without substance. See Gulf,
Mobile & Northern R. Co. v. Wells, 275 U.
. If allowed to sustain the verdict, it would
remove trial by jury from the realm of probability, based on
evidence, to that of surmise and conjecture.