We have evidence from one side only, and on that it is not difficult to find that defendant failed in its duty to restore the highway across which its track was constructed, to such a state as not necessarily to have impaired its usefulness, or to make the passage to its bridge safe for the public. But we do not discover from the record or the argument of counsel that plaintiff’s intestate was affected by its negligence, or that his injuries were caused by any default on its part.

The complaint states that he was on the evening of the 17th of December, 1881, at Fonda, “ and started to go from thence to Fultonville where he resided, and in attempting to approach and cross the bridge in the night time, fell over the wing wall of the bridge and was killed.”

The evidence shows that he was found between eleven *198and twelve o’clock of the night of that day, lying on the track under and near the bridge badly hurt. The physician who was soon in attendance discovered slight, superficial scalp wounds, no broken bones, but “ he was suffering from 4 shock concussion,’ ” and from this cause soon after died. He was hardly able to make a sound, soon became unable to speak, and gave no explanation of the circumstances which led to his condition. The same witness testified that the injury was such as might have been caused by falling from the abutment of the bridge on the railroad track or from a car or by a blow, “ but the probability was, from the general condition of the man, that it was a fall.”

It was evident that the jury supplied an important but unproven fact by mere surmise, and not on inference. They assumed that the deceased was at the wing wall going towards, or was on the bridge when the accident occurred. But of this there was no evidence. He was not seen at the bridge, or upon or at its approaches. The record does not show that he was during the evening even going towards the bridge or his home, which lay beyond the bridge, or that he was intending to do so. There was literally no evidence to show how the deceased came to - the place where he was found. He was seen at the Montgomery hotel in Fonda, between five and six o’clock in the afternoon ; at eight or half-past eight he was at Snell’s hotel in Fonda, “ which,” the witness'says, “ was on the road going from Fonda to Fultonville, by the street railroad.” Another witness says :

“ About eight or half-past eight, I saw him up the street in the village of Fonda. * * * I saw him go down street toward the Montgomery hotel.” And on the same evening about a quarter before nine, he was seen “ at the meat market at Fonda.” Nothing more appears as to the whereabouts or the intentions of the deceased on the evening or night of his death.

We find, therefore, that the appellant’s counsel is right in the assertion that there is no evidence that the deceased was *199“ on the bridge that night, or that he was seen going in that direction. It could therefore only be conjectured that the intestate was upon the wall or bridge, but there was no basis in the evidence to support the conclusion, and without that fact established, the condition of the bridge becomes unimportant.

The judgment appealed from should therefore be reversed, and a new trial granted, with costs to abide the event.

All concur.