McLemore, J.,
delivered the opinion of the court.
This case arises out of an accident occurring in Boulton yards of the R. F. & P. R. R. located in the city of Richmond, a map of which is filed herewith in order that the evidence referring to the situation may be the more readily understood. (See page 386.) While this map is not drawn to scale, it represents with approximate accuracy the principal places-, and the sundry tracks referred to in the evidence,' and in the discussion presently to follow:
The tracks, of which there are quite a number, are usually referred to as running north and south. From the hump ladder switch a track swings off in an easterly course and is known as the ladder track; leaving this ladder track and extending in a southerly direction are three hump tracks Nos. 60, 61 and 62 as shown on the plat.
Ellis, the decedent, was a flagman on a yard engine [372]*372engaged in switching cars, making up trains, etc., his engine being known as No. 45, and had just before the accident been switched in upon ladder track and thence upon track No. 62, there to remain until certain movement of train No. 104, consisting of engine, tender and about twenty-five cars (the cars being pushed in front of the engine) proceeding from Acea in a southerly direction along thoroughfare track, could be completed. The cars in train 104 were to be placed in tracks 60 and 61, which necessitated first switching them on ladder track and thence into hump tracks 60 and 61. - .
At the time of the accident the Acca train was pushing the cars from thoroughfare track into hump track, 60 or 61, the engine being just opposite hump ladder switch which is on the east side of thoroughfare track. Just at this moment engine and tender No. 2 were backing' up the north bound main line track which is immediately west of thoroughfare track, having proceeded from Byrd Street station for the purpose' of being delivered at the roundhouse in Boulton yard. Neither the engineer nor fireman knew of the accident until they had reached the roundhouse..
This engine and tender, backing with the tender in front, passed the engine moving train 104 opposite hump ladder switch, and a few feet north of where the two engines passed, and immediately after their passing, the deceased was found mortally wounded, lying between main line and thoroughfare tracks, and about fifteen to twenty-five feet north of hump ladder switch. In order to turn this switch the operator must be on the east side of thoroughfare track, as the switch was on that side.
No witness actually saw the accident or knows how it happened. The nearest approach to a positive [373]*373statement on the subject, and the only statement in connection therewith, comes from the plaintiff’s witness Long, who was the engineer on train No. 104. This testimony will be referred to in the further .discussion of the case. As engine 104 and engine 2 passed each other they were moving at the rate of from four to six miles an hour. The record offers no explanation as to why the deceased was at this point, when he got there, or how the accident occurred.
There is considerable conflict of evidence as to whether there was a light on the tank of engine No. 2 as it backed through the yard going to the roundhouse. Both the engineer and fireman of this train state positively there was such a light, and that it continued to burn even after reaching the roundhouse. There are several other witnesses that corroborate their statements. Against this is the testimony of R. M. Allen, brakeman Moon, and conductor Yaughan, to the effect that they saw no light. The following from the testimony of R. M. Allen may be taken as fairly illustrative of the whole:
“Q. Did you look at the engine and tender when the rear end of the tender came by you?'
“A. I didn’t pay any more attention to it than to any other engine going by from Elba station.
“Q. Do I understand you to say that there was no lamp on the tender of No. 2, or that you just did not see it?
“A. I say if it was there I did not see it.
“Q. Then you will not positively say that the lamp was not on there?
“A. No.
“Q. But you do say you did not see it?
‘'A. I did not see it.”
* * * * * * * * * *
[374]*374“Q. Did you look at the engine and tender when the rear end of the tender came by you?
“A. I didn’t pay any more attention to it-than to any other engine going by from Elba Station.”
With these as the material facts of the ease, we* are called upon to decide whether or not the trial court was right in overruling the defendant’s demurrer 'to the evidence, and entering judgment for the plaintiff.
The burdens which the demurrant must carry in this class of cases is too well settled to require restatement. There are, however, certain elementary principles of the law of negligence which must be kept in mind in considering whether or not the evidence is sufficient to sustain the judgment of the court.
“Negligence is not to be presumed because the plaintiff has received an injury, but the facts from which negligence may be inferred must be proved by competent evidence. The burden is on the plaintiff to show how and why the accident occurred.” So. Ry. Co. v. Hall's Adm'r, 102 Va. 135, 45 S. E. 867.
The deceased was employed as a brakeman on one of the yard engines working in Boulton yard, and was therefore familiar with the general conditions existing there, and of the ceaseless activity and noise'incident upon the movements of engines, the shifting of cars and the making-up of trains.
At the time of the accident he was apparently performing no duty by reason of his employment as a member of the crew attached to engine No. 104. His train having gone into hump ladder track No. 62 to there remain until Acca train No. 104 could place about twenty-five cars on sidings, and these having not yet been placed, left Ellis at the time with no duty to perform.
It is urged by counsel in argument that deceased [375]*375had left his train and gone west, passing as many as three tracks to the place of the accident, in order to reach the hump ladder switch so as to bs ready to turn his train out of hump track 62 as soon as train 104 had placed its ears in tracks 60 and 61 and cleared the ladder track. The weakness of this contention rests in the fact that he was not injured at the switch, but across the track from the switch some fifteen to twenty-five feet away — with no possible duty carrying him there in so far as the evidence discloses.
It is not known how or why he crossed thoroughfare track and came in contact" with engine or tender of No. 2. The only inference that can be drawn from the evidence is that he crossed thoroughfare track immediately behind engine 104, and at once came in collision with engine or tank No. 2, moving in an opposite direction on the next track to the west. This is apparent from the testimony of plaintiff’s own witness Long, engineer on Aeca train No. 104, moving very slowly south, he of course being on the right side of the cab and next to the main line track:
“Q. Where was Ellis when you first saw him?
“A. I can’t say I ever saw him.
“Q. You saw a man fall did you not?
“A. No; I only saw a light — an unusual motion of a light.
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McLemore, J.,
delivered the opinion of the court.
This case arises out of an accident occurring in Boulton yards of the R. F. & P. R. R. located in the city of Richmond, a map of which is filed herewith in order that the evidence referring to the situation may be the more readily understood. (See page 386.) While this map is not drawn to scale, it represents with approximate accuracy the principal places-, and the sundry tracks referred to in the evidence,' and in the discussion presently to follow:
The tracks, of which there are quite a number, are usually referred to as running north and south. From the hump ladder switch a track swings off in an easterly course and is known as the ladder track; leaving this ladder track and extending in a southerly direction are three hump tracks Nos. 60, 61 and 62 as shown on the plat.
Ellis, the decedent, was a flagman on a yard engine [372]*372engaged in switching cars, making up trains, etc., his engine being known as No. 45, and had just before the accident been switched in upon ladder track and thence upon track No. 62, there to remain until certain movement of train No. 104, consisting of engine, tender and about twenty-five cars (the cars being pushed in front of the engine) proceeding from Acea in a southerly direction along thoroughfare track, could be completed. The cars in train 104 were to be placed in tracks 60 and 61, which necessitated first switching them on ladder track and thence into hump tracks 60 and 61. - .
At the time of the accident the Acca train was pushing the cars from thoroughfare track into hump track, 60 or 61, the engine being just opposite hump ladder switch which is on the east side of thoroughfare track. Just at this moment engine and tender No. 2 were backing' up the north bound main line track which is immediately west of thoroughfare track, having proceeded from Byrd Street station for the purpose' of being delivered at the roundhouse in Boulton yard. Neither the engineer nor fireman knew of the accident until they had reached the roundhouse..
This engine and tender, backing with the tender in front, passed the engine moving train 104 opposite hump ladder switch, and a few feet north of where the two engines passed, and immediately after their passing, the deceased was found mortally wounded, lying between main line and thoroughfare tracks, and about fifteen to twenty-five feet north of hump ladder switch. In order to turn this switch the operator must be on the east side of thoroughfare track, as the switch was on that side.
No witness actually saw the accident or knows how it happened. The nearest approach to a positive [373]*373statement on the subject, and the only statement in connection therewith, comes from the plaintiff’s witness Long, who was the engineer on train No. 104. This testimony will be referred to in the further .discussion of the case. As engine 104 and engine 2 passed each other they were moving at the rate of from four to six miles an hour. The record offers no explanation as to why the deceased was at this point, when he got there, or how the accident occurred.
There is considerable conflict of evidence as to whether there was a light on the tank of engine No. 2 as it backed through the yard going to the roundhouse. Both the engineer and fireman of this train state positively there was such a light, and that it continued to burn even after reaching the roundhouse. There are several other witnesses that corroborate their statements. Against this is the testimony of R. M. Allen, brakeman Moon, and conductor Yaughan, to the effect that they saw no light. The following from the testimony of R. M. Allen may be taken as fairly illustrative of the whole:
“Q. Did you look at the engine and tender when the rear end of the tender came by you?'
“A. I didn’t pay any more attention to it than to any other engine going by from Elba station.
“Q. Do I understand you to say that there was no lamp on the tender of No. 2, or that you just did not see it?
“A. I say if it was there I did not see it.
“Q. Then you will not positively say that the lamp was not on there?
“A. No.
“Q. But you do say you did not see it?
‘'A. I did not see it.”
* * * * * * * * * *
[374]*374“Q. Did you look at the engine and tender when the rear end of the tender came by you?
“A. I didn’t pay any more attention to it-than to any other engine going by from Elba Station.”
With these as the material facts of the ease, we* are called upon to decide whether or not the trial court was right in overruling the defendant’s demurrer 'to the evidence, and entering judgment for the plaintiff.
The burdens which the demurrant must carry in this class of cases is too well settled to require restatement. There are, however, certain elementary principles of the law of negligence which must be kept in mind in considering whether or not the evidence is sufficient to sustain the judgment of the court.
“Negligence is not to be presumed because the plaintiff has received an injury, but the facts from which negligence may be inferred must be proved by competent evidence. The burden is on the plaintiff to show how and why the accident occurred.” So. Ry. Co. v. Hall's Adm'r, 102 Va. 135, 45 S. E. 867.
The deceased was employed as a brakeman on one of the yard engines working in Boulton yard, and was therefore familiar with the general conditions existing there, and of the ceaseless activity and noise'incident upon the movements of engines, the shifting of cars and the making-up of trains.
At the time of the accident he was apparently performing no duty by reason of his employment as a member of the crew attached to engine No. 104. His train having gone into hump ladder track No. 62 to there remain until Acca train No. 104 could place about twenty-five cars on sidings, and these having not yet been placed, left Ellis at the time with no duty to perform.
It is urged by counsel in argument that deceased [375]*375had left his train and gone west, passing as many as three tracks to the place of the accident, in order to reach the hump ladder switch so as to bs ready to turn his train out of hump track 62 as soon as train 104 had placed its ears in tracks 60 and 61 and cleared the ladder track. The weakness of this contention rests in the fact that he was not injured at the switch, but across the track from the switch some fifteen to twenty-five feet away — with no possible duty carrying him there in so far as the evidence discloses.
It is not known how or why he crossed thoroughfare track and came in contact" with engine or tender of No. 2. The only inference that can be drawn from the evidence is that he crossed thoroughfare track immediately behind engine 104, and at once came in collision with engine or tank No. 2, moving in an opposite direction on the next track to the west. This is apparent from the testimony of plaintiff’s own witness Long, engineer on Aeca train No. 104, moving very slowly south, he of course being on the right side of the cab and next to the main line track:
“Q. Where was Ellis when you first saw him?
“A. I can’t say I ever saw him.
“Q. You saw a man fall did you not?
“A. No; I only saw a light — an unusual motion of a light.
“Q. What do you mean by ‘unusual?’
“A. Something like a fellow falling, or trying to catch himself-.”
“Q. Where was that light at the time you saw that unusual move?
“A. It was slightly back of me; I could just see it by a glance out of my eye; it was an unusual move and attracted my attention that instant.”
[376]*376“Q. You were intent on looking at the signal up ahead, and that is why you didn’t see him when you passed?
“A. No; I don’t know whether he was there when I passed; he may have stepped around behind me.”
That he (Long), watching for lights and signals as his train was being pushed into the switch, would have seen the decedent with a lamp in his hand had he been on the ground by the side of Long’s train as it passed him, can scarcely be doubted. The conclusion seems irresistible that he stepped from behind the tender as suggested by his own witness.
We are without any explanation as to how he came in collision with the train that must have killed him, and are unable to say how or why the accident occurred.
The motion of the lantern as described by plaintiff’s witness, Long, could have been the result of his being struck by the backing tank of engine No. 2. It could have been caused by his walking against.the engine or tank while looking in an opposite direction, or what is more probable, he may have crossed the thoroughfare track immediately behind engine 104 and have missed his footing or stumbled over the end of a cross tie, and have fallen under the engine or tank of No. 2. Certainly this last explanation is as probable as that he was on the main line track with a lantern in his hand, and bell on the engine" continuously ringing, and was so oblivious to the perilous surroundings of which he was familiar, as to be run down and killed by a train moving at the rate of a man walking briskly.
“In an action for the death, of one through another’s negligence, it is incumbent upon the plaintiff, in the absence of direct evidence, to show the existence of such circumstances as would justify the inference that the injury which caused the death was due to [377]*377the wrongful act of the defendant, and exclude ihe idea that it was due to a cause with which the defendant was unconnected, and not leave the question to mere speculation and conjecture.” Hicks’ Adm’x v. Romaine, 116 Va. 401, 409, 82 S. E. 71, 74. (Italics supplied.)
Assuming for the moment the negligence of defendant’s employees in the operation of engine No. 2 without a head light, is there any fact established by the evidence to show that such negligence was the proximate cause of the injury? We think not. Being left to speculate or guess as to how the accident occurred, we have no right to base an inference upon a speculation. This court is without facts from which to determine whose negligence it was that caused the decedent’s death. It is not a case of conflicting testimony, but absence of testimony. In such circumstances there was no legitimate evidence sufficient to justify a verdict and the demurrer should have been sustained.
In Hicks’ Adm’x v. Romaine, 116 Va. 401, 411, 82 S. E. 71, 74, it is said:
“While a party demurring thereto is considered as admitting the truth of his adversary’s evidence, and all just inferences which can be properly drawn therefrom by a jury, he does not admit any fact not proven by the evidence, nor does he admit any forced or illogical deductions from the testimony.
“In Hansbrough v. Thorn, 3 Leigh (30 Va.), 156, the opinion by Tucker, J., uses the following language entirely pertinent to the case here in judgment: T will observe, before I proceed to pronounce on the particular case before us, that I think the expression “that the demurrant must admit, or is considered as admitting, every fact which the evidence may conduce [378]*378to prove,” must not be understood too broadly. The language of this court is more appropriate “that the demurrant must be considered as admitting all that could reasonably be inferred by a jury from the evidence against him.” For evidence may conduce, that is tend or contribute towards the proof of a fact which.it is very far from establishing, and which could, not be' fairly inferred from it.’ ” (Italics supplied.)
So in Mitchell v. So. Ry. Co., 118 Va. 642, 88 S. E. 56, it is said:
“Evidence may be so vague, uncertain and self' contradictory as to deprive it of probative force” (on demurrer).
In the ease of General Accident, etc., Corp. v. Murray, 120 Va. 115, 126, 90 S. E. 620, 624, which was a demurrer to evidence case, Judge Cardwell, says:
“The case is analogous to that class of cases frequently considered and ruled upon by this court, in which damages were sought to be recovered for injuries resulting from an accident alleged to have been caused by the negligence of the defendant, and wherein it has been uniformly' held that the burden of showing negligence by a preponderance of the evidence was on ihe .plaintiff, and if the injury might have resulted from one of two causes, for one of which the plaintiff was responsible, but not for the other, the plaintiff could not recover; neither could he recover if it was just as probable that the damage was caused by the one as by the other.” Washington & Old Dom. Ry. v. Weakley, 140 Va. 796, 125 S. E. 672. (Italics supplied.)
In Steele’s Adm’r v. Colonial Coal Co., 115 Va. 385, 79 S. E 346, where the defendant demurred, to the evidence, it is said, page 388 (79 S. E. 347):
“The general doctrine is fundamental that in an [379]*379action to recover damages for personal injuries, negligence will not be presumed, but the burden rests upon the plaintiff to prove it affirmatively and by a preponderance of the evidence. This rule is nowhere more strongly staled, or more steadfastly adhered to than in the decisions of this court.” (Italics ours.)
The failure to keep a lookout, and the allegation that no light was upon the tank of engine No. 2, as it backed through the yard, are relied upon to establish the negligent handling of the No. 2 movement. Suffice it to say that, as to the lookout, the uncontradicted evidence of P. E. Laneave, the fireman on this engine, is that he was in his place on the engine at the time of the accident (corroborated by engineer H. P. Mayo) and was keeping a lookout.
“Q. Where was Tom Long’s engine when you passed it?
“A. He was shoving his cars up on the hump; very near shoving his ears up on the hump.
“Q. His train was still moving?
“A. When I passed him, yes.
“Q. Were you keeping a lookout at that minute?
“A. I was looking out all the time.
“Q. Looking out all the time after you got back into your cab?
“A. Yes, sir.
“Q. And you did not sea Ellis at all?
“A. I did not see Ellis.”
As to whether there is any real conflict in the evidence with respect to the headlight is a question that may admit of differences of opinion. The witnesses for the plaintiff have been heretofore adverted to and the probative force of this evidence is of doubtful value. It presents a striking illustration of negative testimony, against which is the definite and specific [380]*380evidence of engineer Mayo, fireman Laneave, and engineer Long, "plaintiff’s witness, who said in answer to a question with, reference to this train No. 2:
“Q. Was there a light on the locomotive?
“A. Yes, sir; a light on the rear of the tank.”
We are of the opinion, therefore, that the legal effect of the testimony on this subject establishes the existence of a light on tbe tank at the time the same passed Long’s engine, but whether it did or not is of little consequence as them is nothing in the record to indicate that the failure to keep a lookout or to carry a proper headlight on the end of the tank in any way contributed to the injury of the deceased.
The views herein expressed and the conclusions reached vender it unnecessary to enter into a discussion of the remaining questions raised in the briefs and argued before the court.
Considering the case from any and all angles, we are of the opinion there is no evidence to justify the jury in finding, as a fact, that defendant company was guilty of any negligence that caused or contributed to the accident resulting in the death of Warren Graves Ellis.
The judgment of the trial court will therefore be set aside and judgment entered here for the defendant company with costs.