leaving a mark in the frosty coating thereon. I as we do, that there was sufficient evidence Indeed, the testimony is to the effect that there were no indications whatever on the car that any one, or any substance, had come in contact with it on the morning in question, before the examination was made, either on the west end or on the north side of the car. The witnesses also testified that the state of the weather was such that the frost remained intact on the car until after the examination. It was also shown that the skin was not broken or lacerated at the point where the skull of the deceased was crushed in; that there were no other bruises on the body except a few "slight scratches," as the witnesses called them, on the face of the deceased, which, it was assumed, were caused by the sliding of the deceased from the point "X," where the deceased first struck the ground, to the point "B," where the body was found, and that in sliding some of the buttons on his vest had been torn off. The deceased was lying face downward when found.

The doctor called by the plaintiff testified that the skull was probably crushed in by a blow from some blunt instrument or substance. It was also made to appear that the side track was constructed about 27 years prior to the accident, and that it was maintained for that length of time at the place it was at the time of the accident; that records were kept by the defendant of all accidents since the year 1901, and that there was no record of any accident occurring similar to the one in question, or any other, at the side track in question during that period of time.

The plaintiff also produced a number of men who had been employed in the operation of trains in different parts of the country, who testified that it was customary and usual for trainmen to go down the side of cars when in motion to keep a "lookout" for hot boxes. There is other evidence, but, in our judgment, the foregoing fully and fairly reflects the record.

Upon the foregoing facts the defendant requested the district court to instruct the jury to return a verdict in its favor upon substantially the following grounds: (1) Because no negligence was shown on the part of the defendant; (2) that the cause of the death of the deceased is left to mere conjecture; and (3) that the deceased assumed the risk as a matter of law. The court refused to so instruct the jury, but submitted the case to them upon the evidence. The jury returned a verdict in favor of the plaintiff, upon which the court directed judgment to be entered, from which the defendant appeals.

A number of errors are assigned:

[1, 2] In view of the facts and circumstances, the evidence respecting defendant's negligence is quite meager. Assuming, however,

to carry the case to the jury upon both the question of defendant's negligence and upon the assumption of risk on the part of the deceased, yet that, standing alone, is not sufficient to sustain the verdict. In order to recover, the plaintiff was required to establish by a preponderance of the evidence (a) that the defendant was negligent in one or more of the acts charged in the complaint, and (b) that said negligence was the proximate cause of the death of the deceased. The serious question in this case is, is there any substantial evidence in the record from which it may be legitimately inferred that the death of the deceased was caused by his body coming in contact with the car standing on the side track? After a careful reading of the whole evidence contained in the bill of exceptions, we confess our inability to discover any such evidence. The rule is well established that where an accident occurs through the alleged negligence of one person which results in injury or damage to another, and the injured person seeks to recover damages, and it is made to appear that the accident may have been occasioned by one of two or several causes, and that the person complained of is responsible only for one of them, then the burden is on the plaintiff to show that the accident and resulting damages were produced by the cause for which the person complained of is responsible, and in case of a failure to establish such fact the plaintiff must fail in the action. In 29 Cyc. 625, it is said:

"The evidence must, however, do more than merely raise a conjecture or show a probability as to the cause of the injury, and no recovery can be had if the evidence leaves it to conjecture which of two probable causes resulted in the injury, where defendant was liable for only one of them."

[3] If the probabilities are equally balanced that the accident was produced by a cause for which the defendant is responsible or by one for which he is not, the plaintiff must fail. Searles v. Manhattan Ry. Co., 101 N. Y. 661, 5 N. E. 66; James v. Robertson, 39 Utah, 414, 113 Pac. 1068. If, in view of the whole evidence, it is just as probable that the deceased fell from the moving train, and that the back of his head struck the hard, frozen ground, and in that way his skull was crushed, as testified to by the witnesses, as it is that he came in contact with the freight car standing on the side track, and that his skull was crushed by the impact, as contended by plaintiff, then the cause of his death is a mere matter of conjecture. We fail to find any evidence in this record from which it may be deduced or inferred that the deceased came in contact with the freight car standing on the side track and that he was knocked from the moving train by it. The inference is quite as strong, if not stronger, that the deceased in some way slipped and fell from the moving train, or that his

handhold loosened and that he fell to the, the effect of the natural forces are kept in ground. Indeed, by keeping in mind the mind, it is quite probable that if the deceaswhole evidence, the inference that he was ed had come in contact with the standing caused to fall by reason of the cause last car while he was on the moving train, that mentioned is more rational and more prob- by the force of the impact his body would able than that he was knocked from the mov- have been thrown away from the standing ing train by the standing freight car. If car and would not have fallen to the ground there had been no frost on the standing car, between the two tracks so near the standing which of necessity must have been disturbed car, as indicated by the evidence. From all in case any person, object, or thing came in the facts and circumstances the inference is contact therewith, there would be at least certainly as rational, and quite as probable, some basis for the inference contended for that the deceased fell backward from the by plaintiff. Where, however, as in this moving car, and in doing so struck the hard case, the inference is based upon an assum- ground with the back of his head, and that ed or supposed fact, which fact the evidence the momentum of his body, which was imshows did not exist, then the inference is parted to it by the fast moving train, caused left without support. The rule in that re- it to turn over and slide, precisely as indigard is stated by the Supreme Court of Or- cated by the evidence, as it is that his body egon in the case of Goss v. Northern Pac. came in contact with the car standing on Ry. Co., 48 Or. 439, 87 Pac. 149, in the head- the side track. The cause of his death is note, thus: therefore left to conjecture merely, and in view of that fact the judgment cannot prevail.

"Where the evidence of negligence is entirely inferential, and the testimony for the defendant is clear and undisputed to the effect that there was no negligence, the plaintiff's case is overcome as a matter of law, and it becomes the duty of the judge to take the case from the jury."

297, 71 Pac. 215. In the last case cited the following language is adopted and approved:

"When an injury may have come from either one of two causes, either of which may have been the sole proximate cause, it devolves on evidence that the cause for which the defendant the plaintiff to prove by a preponderance of the was liable was culpable and the proximate cause.'

The following cases are all well considered, and in all of them it is held that where, as here, the proximate cause of the injury is left to conjecture, the plaintiff must fail The rule is applied in Christensen v. Rail- as a matter of law: Sorenson v. Menasha P. road, 35 Utah, 137, 99 Pac. 676, 20 L. R. A. & P. Co., 56 Wis. 388, 14 N. W. 446; Kearns (N. S.) 255, 18 Ann. Cas. 1159, and in Rich- v. So. Pac. Ry. Co., 139 N. C. 470, 52 S. E. ards v. Railroad Co., 41 Utah, 99, 123 Pac. 131; Monson v. La France Copper Co., 39 933. It must not be assumed, however, that Mont. 50, 101 Pac. 243, 133 Am. St. Rep. 549; the rule thus stated can be given general ap- Stratton v. C. H. Nichols Lumber Co., 39 plication. Indeed, the rule can rarely be Wash. 323, 81 Pac. 831, 109 Am. St. Rep. applied, since the evidence generally is such 881; Hansen v. Seattle Lumber Co., 31 Wash. that it is the exclusive province of the jury 604, 72 Pac. 457; Whitehouse v. Bryant, etc., to draw the inferences therefrom. The case Co., 50 Wash. 563, 97 Pac. 751; Glancy v. at bar, however, presents a typical case McKees, 243 Pa. 216, 89 Atl. 972; Puckhabwhere the rule is applicable. Here the plain- er v. So. Pac. Ry. Co., 132 Cal. 363, 64 Pac. tiff relies entirely upon an assumed fact, 480; Edd v. Union Pac. Coal Co., 25 Utah, namely, that the deceased came in contact with the freight car which was standing on the side track. The witnesses produced both by the plaintiff and the defendant, however, all agree that the car standing on the side track was covered all over with a thick coating of frost; that any person, object, or substance touching the car at any point or place interfered with the coating of frost and dis- [4] Numerous other cases could be cited turbed it so that it was easily seen by any to the same effect, but it is not necessary to one that some one or something had come do that. It is contended, however, that the in contact with the car; that after careful case of Lewis v. Rio Grande Western Ry. Co., examination, lasting a considerable length 40 Utah, 483, 123 Pac. 97, is decisive of this of time, no mark of any kind was discovered case. We are unable to concur in that view. indicating that any one or anything had In that case it was clearly established that come in contact with the car at any point, the railroad company was negligent in opand that experiments were made to deter-erating its train at a rate of speed prohibitmine whether, if any one or anything of ed by ordinance, and that it had failed to substance had touched the frosting on the give any warning signals in approaching a car, evidence of the fact would appear in the public crossing. The deceased was found frosting. The assumed fact that the body dead at such crossing, toward which he was of the deceased came in contact with the approaching when last seen, just before midcar was thus clearly, if not conclusively, neg-night. The train passed over the crossing atived. Moreover, it is clear that the skull of the deceased could have been crushed by a fall from the moving train upon the frozen ground, precisely as it was shown by the

where the deceased was found just about midnight, and his watch, which was found near him, had stopped at midnight. The controlling question in that case was whether

would thus not constitute the proximate cause any more than the falling on the hard ground or on the ties, or any other object, would constitute the proximate cause of his death. We may therefore regard the evidence from any point of view, and the result is always the same, namely, that the cause of death is left wholly to conjecture.

dict against the contention that the death the car, if disturbed, would not be replaced, of Lewis was caused by his own carelessness just as it was assumed by the witnesses in attempting to cross the track at the cross- who examined the car. That, therefore, ing aforesaid. It was held that, in view of merely adds another element to the unall the evidence, the presumption that Lewis certainty of the true cause of Tremelling's was in the exercise of due care in attempting death. to cross the track at the public crossing was [6] We desire to add, before leaving this sufficient to justify the verdict of the jury. subject, that although it were assumed that Although in the case at bar the question of the deceased came in contact with the standcontributory negligence on the part of the ing car, yet that would not necessarily esdeceased was not a defense to the action, tablish the proximate cause of his death. but was material only in determining the Suppose he had come in contact with the amount of damages, yet the presumption that car after he had lost his hold on the freight he was in the exercise of due care for his car on which he was riding, the proximate own safety is precisely the same as in the cause then would be the loosening of his Lewis Case. The legal effect of the pre- handhold and falling from the moving car. sumption in this case is, however, in favor Coming in contact with the standing car of and not against the defendant. It will not be presumed that the deceased, in broad daylight, unnecessarily exposed himself to the danger of being struck by the car standing on the side track, when he could easily have avoided the danger. Such would be the presumption to ward off contributory negligence, and such is the presumption in this case. In the face of that presumption, therefore, the case is made still stronger for the defendant. Again, plaintiff proved by competent evidence in support of the verdict, this court dence that the deceased was pursuing the usual method in keeping a “lookout" for the expected hot box. This evidence was intended, no doubt, to show that the deceased was not guilty of contributory negligence. If, therefore, he was negligent, it was not because he got down on the side of the car, but because of some other act of carelessness, such as leaning out too far from the moving car. The presumption, however, is that he was not negligent in that respect any more than in any other; and hence it cannot be presumed, without some evidence, either direct or inferential, that he exposed himself to unnecessary dangers.

[5] It is earnestly insisted, however, that we must take judicial notice of the laws and forces of nature, and hence that it is a physical fact that frost on windows and other substances is replaced in case it is disturbed. The familiar experience with windows in dwelling houses and in railroad cars is referred to. The phenomenon alluded to is, however, produced by the difference in temperature of the atmosphere between the inside and the outside of the dwelling house or car. If the atmosphere is at the same temperature on both the inside and outside of the dwelling house or car, the frosting will not be replaced after it is disturbed. The replacement is due to the difference in the temperature, as before stated, and to the moisture contained in the atmosphere. The undisputed testimony of plaintiff's own witnesses is to the effect that it was no longer freezing at about the time the accident happened. In view of that, the frosting on

[7] The Lewis Case, as well as many other cases decided by this court, conclusively shows that, if there is any substantial evi

will not invade the province of the jury and pass on questions of fact. Where, however, as here, the verdict rests on mere conjecture, we cannot, and ought not, seek to escape the responsibility of setting it aside. Where there is no substantial evidence in support of the findings or verdict, then, as a matter of law, the findings or verdict must fail.

One or two of the other assignments may be attributed to the fact that the district court refused to instruct the jury to return a verdict for the defendant as requested, and for that reason need no special consideration.

The assignments relating to the admission and exclusion of evidence are not tenable.

For the reasons hereinbefore stated, the judgment is reversed, and the cause is remanded to the district court of Salt Lake county, with directions to grant a new trial. Appellant to recover costs on appeal.

MCCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

(31 Idaho, 272)

STATE v. GRADY. (Supreme Court of Idaho. Jan. 9, 1918.) 1. CRIMINAL LAW 1004 - RIGHT TO AP

PEAL.

The right to appeal in this state is conferred by legislative authority, and if it exists it must be found in the Constitution or statutes. 2. CRIMINAL LAW 1024(1)—JUDGMENT FOR DEFENDANT-APPEAL BY STATE.

in favor of defendant, whether upon a verdict of The state has no appeal from a judgment acquittal or upon the determination by the court

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of a question of law, unless it be expressly conferred by statute in the plainest and most unequivocal terms.

Appeal from District Court, Lemhi County; James R. Bothwell, Judge.

Joseph D. Grady was charged by information with grand larceny. From an order sustaining his plea of former jeopardy, the State appeals. Appeal dismissed.

T. A. Walters, Atty. Gen., Joseph H. Peterson, former Atty. Gen., and John E. Rees, E. W. Whitcomb, and W. H. O'Brien, all of Salmon, for the State. Jesse B. Roote, of Butte, Mont., James M. Stevens, of Pocatello, and C. R. Clute, of Salmon, for respondent.

the judgment of once in jeopardy, herein entered in the said district court on the 18th day of June, A. D. 1915, in favor of the defendant in said action, and the whole thereof, and from the order of said court, rendered on the said 18th day of June, A. D. 1915, discharging the said defendant and exonerating his bail, and from the further order of said court, made on June 24, A. D. 1915, denying and overruling the plaintiff's motion to vacate and set aside the order discharging the defendant and exonerating his bail, and from the further order of said court, made on the said 24th day of June, A. D. 1915, denying and overruling the plaintiff's written motion to correct its record, so as to show that the defendant had not been adjudged to have been in former jeopardy, and not entitled to his acquittal, and that he be remanded to the care and custody of the sheriff of the said county of Lemhi, to abide the further order of this court."

In support of its attempted appeal the state has assigned as error: (1) The action of the trial court in overruling its demurrer to the plea of former jeopardy; (2) in overruling its oral motion to vacate and set aside the order discharging respondent and exonerating his bail; (3) in overruling its written motion to correct the records to show that respondent had not been adjudged to have been in former jeopardy and that he be remanded to the custody of the sheriff.

MORGAN, J. Respondent was charged, by information, with grand larceny, to which he entered a plea of not guilty. The cause was submitted to a jury, which, after deliberating for some time, advised the court of its inability to reach an agreement, and it was thereupon discharged. When the cause was again brought on for trial, respondent entered a plea of once in jeopardy, wherein he alleged that he was not present in court when the jury was discharged, and had not waived his statutory right to be present. The state demurred to the plea, and moved that it be disallowed and dismissed. The demurrer and motion were overruled, whereupon the state filed an [2] "As a general rule the state has no answer, in which it alleged that at the time the jury was discharged respondent was on right to a writ of error or to an appeal from bail and at liberty, and that if he was ab- a judgment in favor of defendant, whether sent from the courtroom he was voluntarily upon a verdict of acquittal or upon the deso, and had thereby waived his statutory termination by the court of a question of right to be present. A jury was impaneled, to which the trial judge, after the introduction of testimony, submitted the following interrogatory:

"Was the defendant, Joseph D. Grady, present in the courtroom, on the 4th day of April, 1914, at the time when the jury returned into court, announced that they were unable to reach a verdict, and were by the court dis

missed?"

The jury answered the interrogatory in the negative, whereupon the court entered an order that the plea of once in jeopardy was sustained, and respondent was discharged and his bail exonerated. Thereafter appellant filed a motion that the court correct its record, so as to show that respondent had not been adjudged to have been in former jeopardy, and was not entitled to his acquittal, and that he be remanded to the custody of the sheriff, to abide the further order of the court. Counsel for appellant also orally moved that the court vacate and set aside the order discharging respondent and exonerating his bail. These motions were overruled, and appellant served and filed a notice of appeal, as follows:

"You will please take notice that the state, in the above-entitled action, hereby appeals to

[1] "The right to appeal in this state, is conferred by legislative authority, and if it exists it must be found in the Constitution or statutes." Evans State Bank v. Skeen et al., 30 Idaho, 703, 167 Pac. 1165.

law, unless it be expressly conferred by statute in the plainest and most unequivocal terms." 12 Cyc. 804; State v. Ridenbaugh, 5 Idaho, 710, 51 Pac. 750; State v. Craig, 223 Mo. 201, 122 S. W. 1006; Mick v. State, 72 Ohio St. 388, 74 N. E. 284; State v. Ford, 161 Iowa, 323, 142 N. W. 984; Oklahoma City v. Tucker, 11 Okl. Cr. 266, 145 Pac. 757, Ann. Cas. 1917D, 984; People v. Knowles (Cal.) 155 Pac. 140.

Section 13, art. 5, of the Constitution, directs the Legislature to provide a proper enacted section 8043, Rev. Codes, which is system of appeals. Pursuant thereto it has

as follows:

"An appeal may be taken by the state: "1. From a judgment for the defendant on a demurrer to the indictment or information; "2. From an order granting a new trial; "3. From an order arresting judgment; "4. From an order made after judgment, affecting the substantial rights of the prosecution; "5. From any ruling of the trial judge during the course of the trial on the receipt or rejection of testimony, and from any ruling of the trial judge on the giving or refusal to give instructions to the jury."

By reading the notice of appeal in this case, in the light of the provisions of the section above quoted, it will at once appear

peal, by the state, from any of the orders of Company passed a resolution that a meeting the trial court here sought to be reviewed. of the stockholders be called, and a transfer No stretch of the imagination can make any of the system of the canal company to the part of the section, except, possibly, the Snake River Valley irrigation district be recfourth subdivision thereof, applicable to the ommended; each stockholder to receive his matter here under consideration. Even proportion of the bonds of the district to be though we may construe the order sustain- given in payment for the system. On Noing the plea of once in jeopardy, and dis-vember 16, 1907, the stockholders' meeting charging respondent and exonerating his was held and the recommendation of the bail, to be such a judgment as is contem- board of directors was adopted. On Decemplated by that statutory provision, which is ber 14, 1907, the directors again met and dedoubtful, the action of the court, subsequent cided to convey the system of the canal comthereto, overruling appellant's motion to va-pany to the district for the sum of $178,750, cate that order and to correct the record, payment to be in bonds of the district in is not appealable. People v. Walker (Cal.) such denominations that each stockholder of 61 Pac. 800. To hold that the state may ap- the canal company might receive his proporpeal from orders denying such motions is to tionate share. In July, 1908, the transfer permit it to create for itself, by making the was completed, the bonds of the district were motions, the right to appeal, in effect, from received, and in January, 1909, were allotted a judgment or order that a defendant has to the stockholders of the canal company, been once in jeopardy, which right the Leg- and most of them were delivered. The bonds islature has studiously avoided conferring allotted to respondents were not delivered, upon it. but were held for the reason, as it appears, Applying the rule heretofore quoted from that their stock was held as security by othCyc., to the effect that the state's right to er parties. These bonds were intrusted by appeal, in criminal cases, must be expressly the directors to one Mickleson, secretary of conferred by statute in the plainest and most the canal company, who embezzled them and unequivocal terms, it is manifest that the converted them to his own use. It appears action of the trial court, sought to be re- that Mickleson's default was not known to viewed, is final, that this court has no juris- the directors until December, 1910. Rediction of the controversy, and that the ap-spondents instituted this action against the peal must be dismissed. It is so ordered.

BUDGE, C. J., concurs in the conclusion reached. RICE, J., concurs.

(31 Idaho, 252)

CHADWICK et al. v. HOLM et al. (Supreme Court of Idaho. Jan. 8, 1918.) CORPORATIONS 320(4)-Loss OF BONDSLIABILITY OF CORPORATION AND DIRECTORS. Where, with the consent of the stockholders, a corporation, through its directors, transfers all of its property to another corporation, taking as payment bonds of the latter, and where such bonds are, by the directors, allotted among the stockholders in proportion to their shares of stock, and some of them are delivered, but others are lost, through the negligence of the directors, before delivery, a suit may be maintained by the stockholders to whom the lost bonds were allotted, against the corporation and the directors, as joint tort-feasors, for the negligence resulting in the loss.

Appeal from District Court, Bingham County; F. J. Cowen, Judge.

Action by James Chadwick and others against N. M. Holm and others. Judgment for plaintiffs; and defendants appeal. Affirmed.

Hansbrough & Gagon, of Blackfoot, and Clency St. Clair, of Idaho Falls, for appellants. C. S. Beebe and William A. Lee, both of Blackfoot, and Holden & Holden, of Idaho Falls, for respondents.

MORGAN, J. On November 4, 1907, the directors of the Snake River Valley Canal

canal company and its directors to recover the value of the bonds allotted, but not delivered, to them, and based their claim upon the alleged negligence of the directors in permitting the bonds to be stolen. The jury returned a verdict in favor of the several plaintiff's, amounting to $11,242.50, judgment was entered accordingly, and from the judgment this appeal is taken by the defendants who were directors of the corporation.

Appellants deny the right of respondents, as stockholders, to bring this action in their name, and have cited many authorities to sustain this contention; but in each of the cases cited a stockholder sued the directors to recover for losses to the corporation occasioned by their negligence, and it was held that the loss was that of the corporation, and not of the stockholder, even though his shares of stock decreased in value as a result, and hence the corporation should bring the suit. In this action, stockholders are not seeking to recover a proportionate amount of what is due the corporation as a result of appellants' negligence; but they claim the bonds were theirs, because of the allotment of the same to them by the corporation. There can be no doubt that the stockholders' consent to the recommendation of, and action by, the directors to transfer the property of the canal company, was based upon the consideration that the bonds be properly distributed to them. Upon that theory respondents were the proper parties to bring the action. It is contended by appellants that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes