Conrad, J.,
delivering the opinion of the court:
The testimony in this case establishes the following facts: That Francesco Valerii, having been in the employ of the defendant company for a period of about two years, was on the twenty-sixth day of November, 1909, employed by said defendant company as a brakemán on a narrow-gauge railroad operated by said company for the purpose of carrying stone from their stone quarry to a wharf or dock. That on the day mentioned two cars, attached to an engine in the rear, were being moved along the tracks at the rate of about five miles per hour. That the car in the lead had on it an iron scale box, filled with stone, and on the front end of this car, either in the car itself or on the scale box, Valerii was riding in a standing position; the intention being to couple other cars. The two front wheels of said car were derailed, which caused the body of the car to tilt, and Valerii was thrown to the ground and so seriously injured that he died a few hours after.
[1] The testimony established beyond question the relation of master and servant as between the defendant company and Valerii. This relation being established, the fact of accident carries with it no presumption of negligence on the part of the employer, and the duty is upon the injured employee to establish by affirmative proof that the employer has been guilty of negligence. In the case of a passenger the rule of law is different. There an accident carries with it the presumption of negligence on the part of the carrier, which in the absence of proof to the contrary would sustain a verdict against the carrier, for there is prima facie a breach of his contract to carry safely.
Negligence is never presumed, as we have said, as between master and servant. The mere fact of an accident, by which injury is sustained, does not of itself raise a presumption of negligence. The burden of proving the negligence is on the plaintiff. If the plaintiff fails to prove negligence on the part of the defendant, or if, as it has been said, no fair inference of negligence can be drawn from the evidence, assuming that such evidence is true, it is the duty of the court to nonsuit the plaintiff.
[2] Where there is evidence of some negligence upon which the jury can properly find a verdict, or the conclusion to be drawn therefrom is debatable, or rests in doubt, or where the evidence is conflicting upon some material fact, it is the duty of the court to submit the case to the jury for its determination.
[3, 4] It was the duty of the defendant company in this case to furnish reasonably safe machinery and appliances for its employees, and there is no evidence that it was not done in this case, except the accident itself. It is a familiar doctrine that in cases of this kind the law does not presume carelessness or negligence on the part of the employer, towards its employees, and in considering this motion the court must presume, in the absence of evidence to the contrary, that the defendant" company did exercise due care in the discharge of this primary duty.
[5] Valerii in entering the employment of the defendant company assumed all the usual risks incident to his employment, including derailment of cars, if it did not result from the negligence of the defendant, its servants and agents.
[6] The plaintiff contends that the derailment of the car in this case resulted from a broken brass in one of the journal boxes. It was not shown that the car, previous to the accident, was not reasonably safe. Evidence was given to show that, some hours after the accident, the car was replaced on the tracks, and drawn to a point a mile or more distant; that after the latter point was reached the journal box was examined, by one of the servants of the defendant company, who found that one of the brasses in the journal box was broken, and one-half of it lying in sight.
There was no affirmative evidence as to whether the brass was broken before the accident, or by reason of the car leaving the tracks. The failure of the plaintiff to show that the derailment by which Valerii was injured was caused by either the broken brass or other defect in the car, alleged in- the declaration, leaves the cause of the derailment uncertain, and this being so, the court does not feel that the cause of the accident should be left to the surmise or guess of the jury. The court is always reluctant to take a case from the jury, but under all the evidence the court is constrained to hold that in this case the negligence of the defendant has not been shown.
The motion for a nonsuit is granted.