neer in the engine house; the rope runner in the mine giving him signals when to move and to stop the cars. The duties of the plaintiff were those of a slope cleaner, to keep the switches and track clear of coal and other material falling from loaded cars. He performed his work under the orders and direction of the rope runner, and was required to go to such places as were designated by him. On the day of the accident, when six loaded cars were about to be drawn up the main tunnel, past the junction of that tunnel and the branch tunnel, and there to be switched to the branch tunnel and run to the dump, the rope runner directed the plaintiff to board the cars and clean the switch at the junction of the main and branch tunnels. The plaintiff boarded the cars and rode to or near the junction of the tracks. There he alighted, and whilst in the prosecution of his work the cars, after having passed up the main tunnel past the junction, returned and passed along the branch tunnel. The plaintiff stood between the track and the side of the tunnel to let the cars. pass him. The slope was about ten feet wide and the width of the cars about two feet at the bottom and three or three feet and four inches at the top. The first car passed him without any difficulty. A wire trailing from the front of the second car as it went down the branch tunnel, or the rear of the car as it came up the main tunnel, wrapped around his leg as he stood between the side of the tunnel and the track and as the car passed him, and threw him against and under the car and dragged and injured him. At this place the space between the side of the tunnel and the car was twenty-three inches. The cars were two and one-half or three feet high from the track and about five or six feet long. At the end of the car was a door with hinges at the top to dump the coal or other contents of the car. The lower part of the door when closed was fastened with a latch. One end of the wire was attached to this latch and the other trailed along the side of the car. On this point the plaintiff testified: "I had a pair of high top boots on, and I thought the wire had caught in the lace of the flap; it caught so squarely, when it caught me partly and turned me around so my head

was going down, I took my hand that way and that wire was attached to the latch on the car, repairing that car. The wire struck me about half way on the calf of my left leg. I reached down. I felt the wire flip back and saw it. I had a big lamp for cleaning the slope and saw it. The wire was attached to the latch of the car. The wire had the effect of keeping the door closed by keeping the latch down. The wire was fixed on that long end, three or four inches. By tying that down with the wire the door can't fly open, because the latch is tied down in that hook. The wire was to hold the latch from flying out of the hook. When the wire first struck me I was standing up to the side of the cars. One car had passed me. I had about twenty-six inches. The wire seemed to be baling wire. I didn't know it was there, I saw the wire. I took my hand that way and felt the wire and I saw it flip back. I saw it was attached to the latch of the door. I did not examine that car at any time and do not know its condition. I saw the wire on it. I said I thought it was there to fasten the latch because I found it there. I don't know how it came there or who put it there." A picture of a car was shown plaintiff, and he pointed out where the "wire was wrapped around the latch to keep it on the hook. It kept it on the hook. It was right around the latch and hook. I have seen wires used on similar cars to this prior to that time to keep the latch in place in the hook on occasions when the latch would be out of order. The latch that runs across the door gets slack and will fly open and let the coal out. The wire is to hold the latch down in the hook."

This is all the evidence tending to show how, and the purpose for which, the wire was attached to the car, by whom it was placed there, or how long it had been there. No evidence was given to show that the car or latch was defective or out of repair. Plaintiff's case, on the evidence, rested alone on the circumstance that the wire was attached to the latch of the car and was trailed along it. The inference is permissible that the wire was placed on the latch to hold it in place, to fasten it. Whether it was placed there by the mas

ter, or by one for whose acts it was responsible, or by one for whose acts it was not responsible, is not made to appear; nor are there any facts or circumstances from which an inference in such particular may fairly be drawn. Nor is there any evidence to show that the defendant had either actual or constructive knowledge of the wire being on the car. It, of course, was the duty of the defendant to use ordinary care to furnish cars in a reasonably safe and suitable condition. And it may be assumed that it was a question of fact for the jury whether a car furnished and equipped with a wire trailing along its side was suitable or reasonably safe, or whether a car so equipped exposed employees required to be about the same in the course of their employment to unusual and unnecessary dangers. The proof, however, shows that the wire was no part of the car, and, on the evidence adduced, it is just as inferable that the wire was temporarily attached to the latch by a mere co-employee as by the defendant or by one for whose acts it was responsible. Under the circumstances to charge the defendant with negligence it was not enough to merely show that the wire was attached to the latch of the car and trailed along its side. Plaintiff was required to further show that such condition was due to the defendant's want of ordinary care. This he did not do, and for that reason we think the nonsuit was properly. granted.

3

We do not think the evidence so clearly shows the plaintiff guilty of contributory negligence to take the case from the jury on that ground. It is claimed that he was guilty of negligence because he stood in the slope and did not enter one of the manholes as the cars on their return approached and passed him in the tunnel. Had the space between the side of the slope or tunnel and the cars where the plaintiff was standing not been sufficiently wide to permit cars, under ordinary and usual conditions, to safely pass him, there might be ground for such a contention. But the plaintiff was not exposed to any such danger. The danger to which he was exposed was the trailing wire. That danger was unusual and of which he had no knowledge.

There is nothing made to appear that he was called upon to expect or anticipate that a car might approach and pass him with a trailing wire or other equipment of similar danger. The principle which relieves the defendant from liability for not taking precautions to guard against an unusual danger of which it had no knowledge also relieves the plaintiff from the charge of contributory negligence in not taking precautions to guard against such a danger of which he likewise had no knowledge and could not under ordinary circumstances anticipate.

For the reason heretofore stated, we think the judgment of nonsuit should be affirmed, with costs. Such is the order. FRICK, C. J., and MCCARTY, concur.

JAMES v. ROBERTSON.

No. 2221. Decided September 14, 1911 (117 Pac. 1068).

. 1. APPEAL AND ERROR-VERDICT-SUFFICIENCY OF EVIDENCE-REVIEW. The Supreme Court may not pass on the weight of evidence, in an action at law, and when it is urged that the evidence is insufficient to support the verdict it can only review the evidence so far as to determine whether there is any substantial evidence in support of the verdict. (Page 421.)

2. NEGLIGENCE-EVIDENCE-SUFFICIENCY. The rule that, where a plaintiff suing for negligence produces evidence consistent with an hypothesis that defendant is not negligent, and also with one that he is, the proof tends to establish neither, applies only where plaintiff's evidence, when considered alone, has such an effect, or when the jury finds the evidence equally balanced, and does not apply where all the evidence produced by both sides, some of which is in conflict, is capable of such a construction. (Page 428.)

3. NEGLIGENCE-EVIDENCE-SUFFICIENCY.

A plaintiff suing for neg.

ligence need merely show a state of facts from which the jury may logically infer negligence, and, where the jury believes plaintiff's evidence from which the inference of negligence may be deduced, the evidence ordinarily sustains a finding of negligence, though defendant disputes all of plaintiff's evidence. (Page 428.)

4. PHYSICIANS AND SURGEONS-ACTION BY PATIENT-NEGLIGENCE EVIDENCE. In an action against a physician for negligently permitting carbolic acid to come in contact with the cornea of a patient's eye, after removing a cyst from the eyelid, evidence held to justify a finding of negligence, authorizing a recovery. (Page 429.)

5. EVIDENCE-EXPERT EVIDENCE-WEIGHT-CONFLICTING INFERENCES. Where conflicting inferences may be drawn from the opinions of experts, the jury may disregard one class of opinions and base their verdict on the other. (Page 430.)

6. PHYSICIANS AND SURGEONS-LIABILITY FOR UNSKILLFUL TREAT MENT EVIDENCE. The rule that, to authorize a finding that a physician was guilty of negligence in treating a patient, there must be proof from witnesses possessing the required skill, knowledge, and experience that the acts complained of did not measure up to the professional standard cannot be applied to its full extent where a physician did not justify his act, and where a physician, sued for negligently permitting carbolic acid to come in contact with the cornea of an eye of a patient, after removing a cyst from the eyelid, claimed that no part of the acid entered the eye, or that, if any of the solution entered the eye, it was not of sufficient strength to produce the injury complained of, and that the injuries complained of were produced by causes for which he was not responsible, a finding against him need not be supported by expert testimony as to his professional skill, knowledge, and experience. (Page 431.) 7. NEW TRIAL-DISCRETION OF COURT. A party has the unqualified right to move for a new trial in every case, and the trial court in passing on a motion therefor is invested with a sound legal discretion.1 (Page 432.)

8. APPEAL AND ERROR-DENIAL OF NEW TRIAL-REVIEW. The Supreme Court may not exercise the discretion which the district court ought to have exercised in granting a new trial; and where the trial court has refused to grant a new trial the Supreme court may only look into the evidence to ascertain whether there is any substantial evidence in support of the verdict. (Page 432.)

APPEAL from District Court, Third District; Hon. M. L. Ritchie, Judge.

1Law v. Smith, 34 Utah, 407, 98 Pac. 300; Brown v. Salt Lake City, 33 Utah, 241, 93 Pac. 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828.