Mr. Justice Paxson
delivered the opinion of the court, May 2d 1881.
This was an action brought by the widow and minor children of George Schertle, deceased, to recover damages for injuries resulting in his death. The declaration alleges that said injuries were, occasioned by the negligence of the Philadelphia & Reading Railroad Company, defendants below. The jury having found the negligence, the cause has been removed to this court, and several errors have been assigned to the rulings of the court below. As the seventh and last assignment, if well taken, renders a discussion of the others unnecessary, we will consider it here.
By the defendant’s ninth point, the court was called upon to pass upon the sufficiency of the evidence, the point being, “ that under all the evidence in this case, the plaintiffs cannot recover.” The learned judge declined to so instruct the jury, upon the ground that it would withdraw the case from their consideration. This was the object of the point. It was not error to refuse it if there was sufficient evidence of the negligence of the defendant company to submit to the jury. • On the other hand, it is equally clear that if there was no evidence, or at most a scintilla, it was the duty of the court to withdraw the case from the jury and give a binding instruction to find for the defendant. The authorities upon this point are numerous ; it is sufficient to refer to a few of the later ones: Howard Express Co. v. Wile, 14 P. F. Smith 201; Hoag v. The Railroad Co., 4 Norris 293; Penna. Railroad Co. v. Fries, 6 Id. 234; and Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185.
I have looked in vain through this record for any evidence of negligence on the part of the defendant company. There is not even a scintilla. The deceased was; at the time of the accident, and had been for years prior thereto, a brakeman in the employ of the company. On the night of the injury, which unfortunately resulted in his death, he was engaged in coupling and uncoupling the cars of a freight train. While so engaged, in some manner unexplained to the jury, he fell under the wheels of the tank or tender of the locomotive, which passed over one of his legs, producing the injury complained of. As to how he fell, or the cause of his falling, there is not a word of evidence. The theory of the plaintiffs was that his fall was occasioned either by reason of the roughtfess or inequalities of the track, or in an attempt to get on the tank ; the allegation being that the step was defective, and that he missed his footing because of such defect. It appears from the evidence that the track at the particular point where the accident occurred, was in the course of being repaired; that it had been raised a few inches, and that the space between the ties had not been ballasted or filled in ; that as regards the step, it was not defective in its construction, but, as plaintiffs alleged, was not in the position it should have been to insure the greatest amount of safety. Yet, even as to this point, the plaintiffs’ own evidence was evenly balanced, while it was not denied that the deceased had used the step for a year without complaint to the company, and that if he had made objection to it, the rule or practice of the company required it to be changed to suit the crew operating the engine, of which the deceased was one.
Had there been evidence to show that the deceased came to his death by reason of the condition of the track or of the step, it would, notwithstanding, have been too weak and inconclusive to establish negligence on the part of the defendant company and to base a verdict for damages upon. There certainly was no duty to ballast the track for the safety of its employés, and except perhaps at a crossing, no such duty to the public. Besides the inequalities were occasioned by necessary repairs to the track, of which repairs, the deceased, as an employé of the company, must be presumed to have had knowledge.
There was not, however, as before stated, a particle of proof that either the track or the step had anything to do with his death. Eor aught that appeared, he may have fallen in a fit, or for some cause wholly disconnected with either. The case was submitted to the jury without evidence, and the verdict has no better foundation than a guess, or at most mere possibilities. This will not do. The practical effect of the judgment below is to take the property of the defendants and give it to the plaintiffs. This is not allowable, even in the case of a corporation.
Judgment reversed.