Puckhaber v. Southern Pacific Co.

[364]

GAROUTTE,J.

—This is an action for damages by the parents, based upon the death of a son, alleged to have been caused by the negligence of defendant. The facts of the case are of the most meager character. Upon a dark and foggy morning, about half-past five o’clock, the mutilated dead body of this young man, a total stranger in the village, was found lying upon a side-track in the railroad yards of defendant at Rocklin. His body was discovered near the dead body of another man, also a stranger in the village. There were no witnesses to any accident. It is claimed by plaintiffs that deceased was killed by a backing engine and tender which passed over the particular spot to the roundhouse, about five o’clock of the same morning. The negligence of defendant is then claimed to be established by showing that the tender of this engine had no light upon the rear end thereof. It thus appears that the case in its facts is the merest skeleton. And inference, presumption, and conjecture necessarily play a prominent part in the search for evidence sufficient to support the verdict for plaintiffs.

For present purposes it will be conceded that the aforesaid engine and tender in backing to the roundhouse caused the death of deceased. It will be further conceded that defendant was guilty of negligence in backing this engine and tender to the roundhouse without a light upon the rear end thereof. Yet, after making these concessions, the case is still too weak to support a verdict and judgment. This is so, for the reason that there is a total lack of evidence showing any causal connection between the absence of a light upon the tender and the death of the deceased. It is a basic element in every right of recovery that a defendant’s negligence must contribute to the injury,—must be the proximate cause of the injury. By proving defendant’s negligence, without in some way fastening that negligence to the injury, a case is not made out. This is true, even though it be assumed that the law of this state is to the effect that, in the absenee of evidence upon the subject, it will not be presumed that deceased was guilty of negligence. For, conceding negligence of defendant in the abstract was shown, and no negligence upon the part of deceased was shown, still a case may have arisen of

damnum absque injuria.

If the negligence of defendant in omitting to carry a light be simply abstract negligence,—that is, negligence having no relation whatever to the injury done,—then such negligence is a mat