#### Illinois Central Railroad Company v. Jesse Alexander.

Master and Servant—Liability of Master for Act of Servant.

In an action brought to recover from a railroad company for personal injuries alleged to have been sustained through the wrongful act of one of its conductors, there being no corroboration of plaintiff’s testimony, this court reverses the judgment for the plaintiff and remands the cause in order that another trial may be had.

[Opinion filed December 14, 1892.]

Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

Messrs. C. V. Gwin and S. F. Andrews, for appellant.

Mr. Sidney Smith, for appellee.

Mr. Justice Shepard.

Upon the principle declared in Peaslee v. Glass, 61 Ill. 94, the judgment in this case should be reversed, and the cause remanded. It is there said:

“ There are very few cases in which a jury should find a verdict for the plaintiff upon his unsupported testimony alone, when that testimony is positively contradicted by the defendant. It belongs to the plaintiff to make out a case. The burden of proof is upon him, and where the issue rests upon the sworn affirmation of one party and the sworn denial of the other, both having the same means of information' and both unimpeached, and testifying to a state of facts equally probable, a conscientious jury can only say that the .plaintiff has failed to establish his claim. Without saying that this court would set aside a verdict for the plaintiff, rendered in such cases, on the ground alone that it was not sustained by the evidence, we *506must set aside one resting only upon the evidence of thó plaintiff when that is contradicted not only by the defendant but also by another witness, and there are no elements of probability to turn the scale.”

. In the case under consideration the appellee testified that he was forced from a moving train belonging to appellant by the conductor in charge of the train, and thereby thrown under a Michigan Central train which was moving in an opposite direction and injured. As to the cause of the accident his was the only evidence in support of his claim.

The conductor positively contradicted appellee; and Cummings, a brakeman on the Michigan Central train that ran over appellee, testified to a state of facts which, if true, not only corroborated the conductor, but would absolutely bar the appellee from any recovery.

There was other evidence in the case tending to contradict appellee, but the cause having to be tried again we will not comment upon either the weight of evidence or the effect to be given to it, on • either side, further than to say that we are satisfied, from the evidence on both sides, that another trial should be had.

Reversed and remanded.