The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.
*546The action was to recover damages resulting from the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.
The Solvay Process Company operated extensive works about two miles west of the city of Syracuse, on the line of the Auburn branch of the defendant’s road. Passing the works on the south the defendant had its main or passenger track, and north of this and adjacent to the Solvay works it had three sidings, used exclusively for the benefit of those works.
The Solvay Process Company had its own engines and crews of men to operate them, and had more or less sidings north of defendant’s tracks and within its own premises, which it used in connection with its business. The deceased was one of the Solvay Process works employees, a bralternan, working in one of the engine crews. On the night of the accident the deceased was to commence work at six o’clock. His body was found between the main or passenger track and first siding to the north of it, a little before six o’clock, and just after the passenger train, leaving the Syracuse station at five o’clock and thirty-five minutes, passed by the Solvay Process works. It was claimed by the plaintiff that his death, resulted from his being hit upon the head by a large piece of coal, falling from the tender of the engine drawing such passenger train. No one saw the accident, and the manner in which the death was caused was a matter of inference from circumstances alleged to have been proven at the trial. The place where the accident occurred was iqoon the defendant’s land and by the side of its passenger track. The public generally had no business there. The employees of the Solvay Process Company had a right to be there, while engaged in performing their duties for that company. Whether the deceased was so engaged at the time he was killed was a question in controversy upon the trial and which was submitted to the jury. The evidence, to say the-least, was very meager to support plaintiff’s claim that the deceased was properly there and performing his master’s duty. The jury found for the plaintiff' upon the issue, however. It was necessary they should so find in order to render a verdict for the-plaintiff as the court charged them. It was also essential that the plaintiff should sIioav the mann'er in which the death was caused in order to obtain a verdict in her favor. The death must be traced *547to the negligence of the defendant, and this could be done, in this case, only by proof that a large piece of coal fell from the tender of the engine of the passenger train, and struck him upon the head. Here again the evidence was very meager. It was, however, submitted to the jury, under the instruction by the court that this fact must be found, in order to enable the plaintiff to recover, and the jury found it accordingly. The negligence was not yet established, however. The jury must go further and find that this piece of coal fell from the tender of the engine, by reason of the coal having been piled upon the tender improperly, carelessly and negligently, in that it was piled up too high above the edge thereof. It is interesting at this point to note the particular language of the charge:
“ The mere fact that the accident happened, if you find it happened as the plaintiff claims; the mere fact, if you so find, that a piece of coal fell from this passenger train and killed McConnell is not in itself evidence of any negligence whatever on the part of the railroad company. You must specifically find, apart from and excluding that consideration, that the railroad company was negligent in some way, and that that negligence caused the death of McConnell.
“ The sole claim of negligence made by the plaintiff is that the coal upon this engine was improperly piled, and that because of such improper piling this particular piece in question fell from the tender and struck McConnell, killing him. The question I submit to you. The evidence upon that is brief. Two of the witnesses, the motorman and the conductor, state that they saw the tender; that it was piled with coal of irregular sizes, and that it was rounded up from the edges and raised in the center about six inches above the edge of the tender. If that you find to be the fact there can hardly be any claim that the tender was improperly loaded or that the defendant was negligent in any way in that regard. The witness Mitchell states, however, that he also saw the tender as it passed on the night in question, and that in the center the coal was rounded up as the other witnesses have described, but rounded up to a height of about three feet above the edges. As I say, if you find that the evidence given by the motorman and the conductor is true, you cannot make any finding of negligence in this case based upon the way in which that tender was loaded, and as that is the *548only claim of negligence you cannot make any finding in favor of the plaintiff. If you find, however, that the tender was piled as Mitchell has described it to you, I leave it for you .to say whether, as a matter of fact, in so loading its tender the defendant failed to exercise that degree of reasonable care and caution which the ordinary man would have used under similar circumstances. That is the only question of negligence' which I submit to you in this case. Did the defendant show a want of proper care and caution in the manner in which this tender was loaded ? And if it did, did death result because of that lack of care and caution ? In other words,; did death result because this particular lump of coal which is said to have struck McConnell was improperly placed upon this tender and thereby became loosened and rolled from the tender and struck him? You must find that the tender was improperly loaded and that that improper loading caused the lump in question to roll to the ground and strike McConnell.”
This was a very clear statement of the question of negligence submitted to the jury, and under this charge the jury found for the plaintiff. The two witnesses who testified to the coal being piled up but a few inches above the edge of the tender were not employees of the defendant. They were disinterested witnesses and were called and examined by the plaintiff on this subject. The next morning the witness Mitchell, who had been examined the day before, was put back upon the stand and gave the evidence upon--"Inch the jury based their verdict- The plaintiff had entirely failed to prove by its two witnesses, Felt and McArdle, employees of the street railroad company, any negligence to base a recovery upon. Mitchell was a co-employee of the deceased with the Solvay Process Company. He was inteiwiewed during the night by the plaintiff’s counsel and was called back to the stand in the morning and gave the evidence which alone carried the case past .the court and. to the jury. While the evidence, however unsatisfactory, may have been sufficient to carry the case to the jury, under the case of McDonald v. Met. St. Railway Co. (167 N. Y. 66), recently decided by the Court of Appeals (notwithstanding the former decisions of that court, Linkhauf v. Lombard [137 id. 417] ; Hemmens v. Nelson [138 id. 517] ; Laidlaw v. Sage [158 id. 73, 96]), we think the evidence was not sufficient to hold the verdict upon'the motion for a *549new trial. The verdict was clearly against the weight of evidence. The burden of proof was upon the plaintiff. Such burden was not met or sustained. The charge was unobjectionable, but the jury seemed willing to arrive at any conclusion suggested by the court as necessary to support a verdict for the plaintiff. The evidence upon all the questions of fact submitted to the jury was very slight to rest a finding upon in favor of the plaintiff, but the evidence upon the question of the negligent loading of coal upon the tender, and such negligence causing the injury and death of the deceased, was too slight and unsatisfactory to authorize the finding made by the jury. The defendant had a legal right to use coal that was in some part at least in large pieces. It had a right to so load the coal as that it should extend above the edge of the tender to some extent. How this particular piece of coal happened to fall from the tender, whether from the manner in which it was loaded, or while being transferred from the tender to the fire box, or while other coal was being so transferred, or how it happened, was a mere matter of conjecture. There were no facts shown from which an inference could fairly be drawn one way or another. There was no proof that the coal was loaded upon this tender in any other than the ordinary way in which such loading was accustomed to be done; that there was anything extraordinary or negligent in such loading. We do not think it was fairly shown that the piling up was at such a height as to be negligent. Coal is liable to fall from tenders when trains are running at a high rate of speed, and the mere fact that it did fall on this occasion, as stated by the trial justice to the jury, was no evidence that there was negligence in loading the tender on this particular occasion.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed upon questions of fact, and new trial ordered, with costs to the appellant to abide the event.