might, according to the ordinary experience of mankind, have been due to other causes than negligence for which the defendant was responsible, it is for the plaintiff to exclude the operation of those causes by the greater weight of evidence, since all accidents are not the result of negligence. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 273; Dec. Dig. 134(11).] 285(3)-DEATH OF BRAKEMAN - PROXIMATE CAUSE - QUESTIONS FOR JURY. 4. MASTER AND SERVANT In an action for death of a freight brakeman from falling from the defendant's car, there being no witnesses to his fall, in view of the fact that it is a matter of common knowledge that trainmen come to their death every day by slipping and falling from cars, evidence held insufficient to warrant submission to the jury whether deceased's fall was caused by boards nailed over a feed hole in the roof of a freight car upon which he was walking. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1003; Dec, Dig. ☺ 285(3).] Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. Action by Mary A. Parmelee, as administratrix of the estate of David Parmelee, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed. Griffin & Griffin, of Seattle, for appellant. Geo. W. Korte, of Seattle, for respondent. CHADWICK, J. Appellant, as administratrix, brought this action to recover damages for the death of David Parmelee, who was killed while in the performance of his duties as brakeman in the employ of respondent. The immediate facts concerning the untoward event are as follows: Deceased reported for duty as swing brakeman on train No. 64 east, leaving Seattle at 10 o'clock p. m., July 5, 1914. The crew consisted of Parker, conductor, Watson, head brakeman, Parmelee, swing brakeman, and Kidler, flagman. As made up in Seattle yards, the train consisted of an engine, one large automobile car, one stock car, and the caboose in the order named. At Black River Junction, a 25-minute run from Seattle, 38 cars were switched into the train ahead of the automobile and stock car. No. 63 extra west pulled into the yards as No. 64 was being made up and, as the main line was blocked, had to remain there until the departure of No. 64. The crew of the west-bound freight consisted of Andrews, conductor, Fetrow, head brakeman, Ward, rear brakeman, and Merriman, flagman. When train No. 64 started east, Fetrow and Parmelee were talking together on top of the automobile car. After the train had gone a short distance, Fetrow left Parmelee and stepped over onto a car on an adjoining side track. He testifies that the last he saw of Parmelee he was going toward the caboose. As the train passed Merriman, Parmelee, who was then standing in the middle of the stock car and looking toward the engine, called out: "Good night, Merry." Merriman is the last person who saw him before the accident. Shortly afterwards, and when the train had moved about four car lengths, Merriman heard the lantern fall, and called the attention of Fetrow, who was near, saying that he thought Parmelee had fallen. Upon investigation by Fetrow, Parmelee was Fetfound lying between the side tracks. row testifies that Parmelee's only statements were: "I fell off; I fell between." Appellant sought to prove that the stock car was in a defective condition in that one of the feed holes in the top of the car-the one on the rear left-hand side of the carhad been nailed over with boards; that one of the boards had been nailed over the hinge of the door of the feed hole so that there was a space of from 12 to 2 inches between the edge of the board and the roof of the car, the obstruction being on the side nearest the running board; that deceased had performed his duty on top of the train and was proceeding on his way to the caboose which was the next car in the rear, and in which he was accustomed to ride between stations; that it was usual for brakemen thus engaged, and moving, to pass diagonally across the corner of the roof; that deceased must have so passed and, in passing, tripped over the board which had been nailed over the hinge, and fell between the stock car and the ca boose. We have said no one saw decedent fall, and no one can say, with certainty, how the accident happened. The testimony to sustain the facts and circumstances relied upon may be summarized. The head brakeman said he rode in the cupola of the caboose from Seattle to Black River Junction; that, while passing by one or two electric lights, he noticed that the feed hole of the stock car had been boarded over. One witness says he saw decedent jump from the automobile car which was about four feet higher than the stock car, and that, after the lapse of about such time as it would take a man to go the length of the car, he saw his lantern jerk or swing and disappear. This witness was about 600 feet away, 15 car lengths. Another witness says he heard what he thought was a stumble. Another witness heard decedent's lantern crash upon the ground. We have held that negligence may be proven by circumstantial evidence. Sweeten v. Pacific Power & Light Co., 88 Wash. 679, 153 Pac. 1054; Anna F. Frescoln, as Administratrix, v. Puget Sound L. & P. Co., 155 Pac. 395. We have also held that proof of negligence does not have to be beyond a reasonable doubt. Holland v. Bridenstine, 55 Wash. 470, 104 Pac. 626; St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 Pac. 804. But this court has never held, nor has any other that we are aware of, that the proof of the proximate cause could be left to conjecture; or speculation. See Weckter v. Great Northern R. Co., 54 Wash. 203, 102 Pac. 1053, and cases cited. [1] Negligence being a fact to be proven either by direct or circumstantial evidence, and not to be presumed upon conjecture or speculation (Wilkie v. Chehalis County Logging, etc., Co., 55 Wash. 324, 104 Pac. 616; Frescoln v. Pacific Power & Light Co., supra), it is necessary to consider whether ap pellant has proved a case of negligence or whether the cause of decedent's death rests in speculation and conjecture. If there be proof of probable cause, whether the injury resulted in consequence of the established cause may be left to reasonable inference. That is what is meant by reasonable inference from established facts. The "While the train was going through the cut, at the rate of 15 miles an hour, the intestate to a platform car to set the brake on that car, was seen to go down from the top of a house car and this was the last seen of him alive. brake on the platform car was afterwards found to be set. His next duty was to ascend a ladder on the side of a house car, in the rear of the platform car, to set the brake on that car. His lighted lantern was seen on the top of this car, and the lantern was afterwards found there. "The train of cars was moving towards the east, and the greater part of the intestate's dead body was found a quarter of a mile to the eastward of the center of the cut. An impression just east of the place where the ice on the side was found in the snow by the side of the track of the cut came nearest to the track, indicating that something heavy had fallen there." The court disposed of the case, saying: "The burden of proof is upon the plaintiff to show that her intestate was using due care *It is imwhen the accident happened. * Miller-Brent Lumber Co. v. Douglas et al., 167 Ala. 286, 52 South. 414. In other words, there can be no inference of fact unless an antecedent fact or condition be proven by direct or circumstantial evidence. Inference follows certainty, and is the ultimate and compelling conclusion of the mind from established facts. No presumption of negligence arises from the mere fact that the deceased was found dead alongside of the track. This, counsel admits, and undertakes to prove a cause, an act of negligence. [2] Although denied by the other witnesses, one witness has sworn that boards had been nailed over the hinge on the feed hole so that a space was left between the roof of the car and the board. This would be a sufficient cause but the proof fails to bring deceased in contact with the alleged defect. It shows, at best, only a possibility. This court, in the case of Whitehouse v. Bryant Lum., etc., Co., 50 Wash. 563, 97 Pae. 751, has stated the governing principle. The court said: Conceding, for the purpose of the case, that there was testimony upon which the jury might have been warranted in finding neg ligence on the part of the respondent, there is no testimony upon which a jury could have based a conclusion that such negligence was the proximate cause of the injury, not because there was no eyewitness to the accident, since it is undoubtedly the established law that the proximate cause may be shown by direct evidence or it may be adduced as an inference from other facts proven, but because no legitimate inference can be drawn that an accident happened in a certain way by simply showing that it might have happened in that way, and without further showing that it could not reasonably have happened in any other way." The case of Corcoran v. Boston & Albany Railroad, 133 Mass. 507, seems to be in point. In that case, it was contended that the deceased, who was a brakeman, was killed by being knocked from a ladder on the side of the car, upon which it was his duty to go while the train was passing through a cut, by an accumulation of ice and snow which the defendant had negligently suffered to be there. possible to tell from the evidence how the intestate fell from the cars, what he was doing at the time. * **These questions are left to conjecture. The evidence would not justify tained the burden of proof which was upon her the jury in finding that the plaintiff had susas to these points, and the superior court therefore rightly directed a verdict for the defend ant." The Supreme Court of Iowa, in Wheelan v. C., M. & St. P. Ry. Co., 85 Iowa, 167-175, 52 N. W. 119, quotes from other cases as follows: "In Asbach v. Chicago, B. & Q. Railway Co., theory cannot be said to be established by cir74 Iowa, 250 [37 N. W. 182], it is said: 'A cumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient that they be consistent merely with that theory, for tendency to prove the theory. This is the wellthat may be true, and yet they may have no settled rule.' It seems to us that we may reasonably draw other conclusions as to the cause those contended for by the plaintiff. 'Verdicts of this injury from the facts in evidence than must have evidence to support them, and must not be founded on mere theory or supposition.' Bothwell v. C., M. & St. P. Railway Co., 59 Iowa, 194 [13 N. W. 78]. A jury will not be permitted merely to conjecture how the accident occurred. Cumberland & P. R. Co. v. State, 73 Md. 74, 20 Atl. 785 [25 Am. St. Rep. 571]. And it is said that 'in matters of proof possibilities the existence of facts. Baltimore are not justified in inferring from mere & O. R. Co. v. State, 71 Md. 590, 18 Atl. 971." we [3] In discussing the rules of circumstantial evidence, Mr. Labatt (sections 1602, 1603, 1604) says that a recovery cannot be had where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence, and that, the establishment of a juridical connection between the master's negligence and the injury being one of the essential prerequisites to the maintenance of the action, the burden of proving that there was such a connection rests on the plaintiff; that the action cannot be maintained if, after all the testimony is put in, it remains doubtful whether the injury resulted from the cause suggested by the master or the cause suggested by the servant. If there is nothing more tangible to proceed upon than two or more conjectural theories, it is immaterial that the theory suggested in the interest of the servant is more probable than that suggested in the interest of the master, so that the rule is laid down: "If the existing state of affairs, however dangerous, might, according to the ordinary experience of mankind, have been due to other causes than negligence for which the defendant was responsible, then it was for the plaintiff to exclude the operation of those causes by the greater weight of evidence." Brooks v. Kinsley Iron & Machine Co., 202 Mass. 228-231, 88 N. E. 771. (Weckter v. Great Northern R. Co., supra), that no such certainty of causation has been proven, either by direct or circumstantial evidence, as would warrant us in reversing the decision of the trial judge. It is just as possible that deceased came to his death by some cause other than the negligence of the respondent, as that he came to his death through such negligence. Possibility cannot be pyramided on possibility to make a chain of evidentiary circumstances. It is not a possible theory, but inference from facts reasonably ascertained which impels. It is that conclusion to which the mind will inevitably either side, and will say, not arbitrarily, but as a result of due deliberation and a measur This would seem to imply that, in determining the weight of the evidence and wheth-return when it weighs the circumstances for er the case should have been submitted to the jury, the court might properly take into consideration the several circumstances as testified to by the witnesses for both parties. In addition to the alleged defect plaintiff relies upon the fact that Parmelee had about time to reach the back of the car; that the lantern seemed to be jerked or swung violently that there were two parallel marks on the shoe of plaintiff just in front of the point where the shoe laces begin. On the other hand, the testimony shows that the deceased was an experienced brakeman; that he had on a new pair of shoes; that he appreciated the danger of wearing new shoes, and stated to one of his coemployés that he intended to change them; that he was standing in the middle of the car, facing toward the engine when last seen; that if he had tripped over the board he would have fallen clear of the cars and not between them; that it was a rule of the company that brakemen should remain on top of the cars until clear of the yards; that there is a presumption that he knew and was keep ing the rule; that the stock car had been tested by a car inspector before it went out on the run, and had been passed as being in good order; that the car had been examined at a way station, about half past 7 in the morning following, by some of the trainmen who testified that there were no boards nailed over the feed hole; that it was examined at Cle Elum after the run had been completed by the engineer, fireman, and station agent, and that the feed hole was the same as the other feed holes in the car. One witness testified that he found no boards nailed over, and no nail heads or anything of that kind. Some of the train crew testified also that on the end of the automobile car next to the stock car there was a coating of dust and grease, and that there were marks which, in the opinion of the witnesses, were made by the gloved fingers of some one who might have fallen between the cars. Deceased had a glove on when found. [4] We think, measuring all the circumstances and the fact that the occupation of the deceased was, at best, highly hazardous, and that it is "a matter of common knowledge that trainmen come to their death every ing of all the facts, that the proximate cause of the accident is to be found in the negligent conduct of the party charged. This is but another statement of the primary rule of circumstantial evidence; that is, that not only should the circumstances all concur to show that the thing charged happened in a particular way, but that they clusion. All accidents are not the result of are inconsistent with any other rational connegligence. 29 Cyc. 589. In Chilberg v. Colcock, 80 Wash. 392, 141 Pac. 888, it was contended that the defendants had negligently installed gasoline tanks in a launch. An explosion occurred. There was no direct evidence. In holding that a showing that an accident might have happened in a particular way did not meet the rule of circumstantial evidence, the court quoted from Hansen v. Seattle Lumber Co., 31 Wash. 604, 72 Pac. 457: "But there must be some evidence, either direct or circumstantial, that there was negligence on the one side, an injury resulting in damages on the other, and that the injury and damages followed the negligence, and were produced thereby. * * * It is not proving his case by circumstantial evidence for the respondent to show that there were causes, for which produced the injury, without showing that it the appellant would be liable, which could have could not have been produced in any other manner, or in any manner for which the appellant would not be liable" -saying: "So in this case, it was necessary for the apthe gasoline escaped from this particular fitting, pellant to show either by positive evidence that or that the gasoline could not have escaped from some cause for which the respondents would not be liable. It is possible, of course, in this case, that the gasoline escaped from this particular fitting. But it is just as possible that the gasoline escaped from some other cause, and that the explosion was the result thereof, and not of gasoline which escaped from this particular fitting, because it is not shown that any gasoline actually escaped from this particular fitting, or that it could escape. The evidence shows that it might have escaped from this fitting, but that is as far as it goes. We are satisfied, therefore, that the court properly refused a recovery on the part of the appellant." To hold with appellant, we would have to say that, inasmuch as she has shown a possible way for the accident to have happened, show by direct affirmative evidence that de body, and a cure be thus effected. It is furceased lost his balance and fell, or missed his ther shown by the evidence in this case that hold on the grabiron, or stumbled over the the complaining witness went to the office of running board, the edge of which was about the appellant seeking, or pretending to seek, three inches above the roof, or many other treatment for one Augerson, who accompapossibilities that might be suggested. It is nied him, and who declared to appellant that because such proofs are generally impossible he was suffering from a private disease. that the rule is declared that, in all cases Appellant made a physical examination and where no witnesses saw the accident, the diagnosis confirming the opinion or pretendburden is on the plaintiff and continues ed opinion of Augerson, and thereupon, aftthroughout the trial. Powers v. Pere Mar-er assurance that he treated by prayer only, quette R. Co., 143 Mich. 379, 106 N. W. 1117. treated his patient by the same physical We will infer a consequence from an estab- methods and in the same manner as describlished circumstance. We will not infer a ed in the former case. circumstance when no more than a possibility is shown. Affirmed. Appellant contends that his treatment falls within the proviso of the statute; that he treats diseases, and did so in this case, only by prayer. Appellant further contends that MORRIS, C. J., and MOUNT and ELLIS, he makes no charges, and testified as folJJ., concur. (92 Wash. 200) STATE v. PRATT. (No. 13272.) ING WITHOUT AUTHORITY lows: People who come in here, the majority, are used to paying $1 a treatment, or some pay $5 for six treatments, and then we don't get any more from them for a week." After the treatment had been concluded, 6(1)-PRACTIC- appellant gave the patient some advice as to "PRACTICING diet. A system of "Suggestive Therapeutics," in While we are not disposed to define either which defendant indulged in prayers, laying his a form of prayer or an essential posture for hands on the patient, manipulating the muscles and nerve controls, and claimed cures, is "practicing medicine," and the name and method a mere subterfuge to escape the requirement of li cense. [Ed. Note. For other cases, see Physicians For other definitions, see Words and Phrases, Affirmed. E. P. Edsen and Hammond & Hammond, all of Seattle, for appellant. Alfred H. Lundin, Frank P. Helsell, and Joseph A. Barto, all of Seattle, for the State. those who invoke it (vide "The Prayer of Cyrus Brown," by Sam Walter Foss), and while prayer, accompanied by the laying on of the hands, finds ample warrant and justification in the "Holy Writings," we cannot escape the conclusion that appellant has done no more than make a superficial adjustment of his practice so as to avoid the effect of the former adjudication against his methods. He attempts to distinguish the cases, but they are essentially the same. It might be contended with reason that this is a stronger case against him, for the testimony of the witness who was treated is that, after the warmth of the hands of appellant had become noticeable, they were moved to another place upon his body, thus indicating that appellant's faith was not entirely without questioning, or above the aid of physical manipulation, which is sometimes CHADWICK, J. Appellant was convicted quite as efficient in promoting circulation and in the superior court of the crime of prac-health as are the prayers of the faithful. ticing medicine without a license. The con- The only distinction we can see between trolling statutes are Rem. & Bal. Code, 88 this case and the other one is that appellant 8400-8405. Appellant maintains a place has renamed his method of suggestion. Forknown as the "Progressive Healing Insti- merly he conveyed his own suggestion of tute," and had heretofore treated the sick mind through his hand to the mind of the and afflicted by a system or method which patient, and the patient cured himself, or he called "Suggestive Therapeutics." His believed that he was healed. Now he would, method of treatment is described in the case by the employment of the same methods, of State v. Pratt, 80 Wash. 96, 141 Pac. 318, invoke the will of the Supreme Being as a as a laying on of the hands upon that part direct curative force. There has been no "of the body where the trouble is * *change in appellant's methods, either in form upon certain parts of the spine that controls or substance. * these nerves or the nerves that control the organ," and by the giving of certain suggestions which go from the mind of the operator to the mind of the patient so that the mind of the patient will control his The judgment of the lower court is affirmed. MORRIS, C. J., and MOUNT, FULLERTON, and ELLIS, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes July 28, Rem. & Bal. Code, $$ 459, 460, limiting the life of a judgment to six years and prohibiting its revival for a longer period from the date of its original entry, has no application to a judgment rendered on a contract antedating the act, notwithstanding that judgment was rendered after the act became effective. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1312;. Dec. Dig. 753.] 2. JUDGMENT 863-REVIVAL - PENDENCY OF INJUNCTION-SUIT AS BAR. The pendency on appeal of a suit to enjoin the enforcement of a dormant judgment is no defense to proceedings for the revival of such judgment. pleading, an order reviving the judgment was entered. He appeals. [1] As to the first affirmative defense, this case is a replica of the case of Fischer v. In Kittinger, 39 Wash. 174, 81 Pac. 551. that case, as here, the judgment involved was recovered in a common-law action upon a judgment, which original judgment was based upon a contract antedating the act of 1897. The judgment upon the original judgment was held revivable by motion under the old law as the law of the contract, regardless of the fact that the judgment sought to be revived was rendered after the passage of the act of 1897. We adhere to that view. [2] As to the second affirmative defense, it is manifest that the action of Kelleher v. Wells was not brought to determine the same right sought to be exercised by the plaintiff [Ed. Note. For other cases, see Judgment, in this proceeding. That action was brought Cent. Dig. §§ 1599-1602; Dec. Dig. 863.] to enjoin the enforcement of the judgment Department 1. Appeal from Superior by execution. Plaintiff here was the defendCourt, Skagit County; Guy C. Alston, Judge. Proceedings by Maurice Foley against John Kelleher to revive a judgment. From an order sustaining a demurrer to the answer and from an order reviving the judgment, defendant appeals. Affirmed. Coleman & Gable, of Sedro Woolley, for appellant. Million & Houser, of Seattle, for respondent. ELLIS, J. This is a proceeding to revive the judgment involved in the case of Kelleher v. Wells, 87 Wash. 323, 151 Pac. 823. That was an injunction suit to restrain the enforcement of a judgment rendered on May 17, 1909, in a common-law action on a judg-. ment originally rendered in 1896 upon a contract. On appeal we held that the act of 1897 (Rem. & Bal. Code, §§ 459, 460), limiting the life of a judgment to six years and prohibiting its revival for a longer period from the date of its original entry, though continuing the lien of the judgment for six years, has no application to the judgment in question because the original judgment upon which this judgment is based was rendered upon a contract antedating that act. Therefore, deciding that as to this judgment the right of execution is governed by the prior law, we sustained the injunction. ant there. In that case the right of revival was incidentally but not directly involved. Plaintiff here as defendant there could not have revived his judgment either in that action or in any proceeding in that action. To revive, he must either move under the old statute in the original action or bring a common-law action on the judgment. As defendant in the equity suit for injunction he could have done neither of these things. It follows that the pendency of that action was not sufficient to sustain the plea in abatement of this proceeding. The affirmative matters pleaded stated no defense. The demurrer to the answer was properly sustained. Affirmed. MORRIS, C. J., and MOUNT, CHADWICK, and FULLERTON, JJ., concur. (92 Wash. 234) STATE BOARD OF MEDICAL EXAMINERS v. JORDAN. (No. 13044.) (Supreme Court of Washington. July 17, 1916.) 1. PHYSICIANS AND SURGEONS 11(3)—RevOCATION OF LICENSE-COMPLAINT SUFFICIENCY. A complaint before the medical examiners alleging that defendant was a licensed practitioner, that he advertised his business, that such advertising was such as was intended or had a tendency to deceive the public or impose upon credulous or ignorant persons and be harmful to public morals or safety, in which respect defendant was guilty of unprofessional conduct, is sufficient under Rem. & Bal. Code, § 83972, subd. 3, defining the offense charged, since revocation proceedings are not required to be conducted with legal nicety. The present proceeding to revive was instituted by motion filed in the common-law action on January 22, 1915, pending the appeal in the injunction suit. Defendant answered admitting the rendition of the judgment of May 17, 1909, and interposing two affirmative defenses: (1) That the judgment had expired on May 17, 1915, and was not capable of revival; (2) that the action of Kelleher v. Wells was pending on appeal to determine the same rights sought to be de- 2. PHYSICIANS AND SURGEONS 11(3)-REVtermined in this action. Plaintiff demurred OCATION OF LICENSE - CHARACTER OF PROCEEDINGS. to these affirmative defenses. The demurrer was sustained. Defendant abiding by his ing that proceedings on appeal from determina [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11(3).] Under Rem. & Bal. Code, $ $399, provid |