[1] The record showing that the case was at issue upon the answers (Rev. Code of Prac. La. art. 329), the questions involved were questions of fact, and the issues were for a jury, and, a jury not having been waived by the parties, it was error to dismiss the case.

[2] As the error requires a reversal, and on a new trial the question of estoppel claimed in the plea may be again urged, we consider it proper to say that we see no inconsistency between the allegations of plaintiff in this suit as to the' negligence of the defendant in the construction of the railway bridge, which it is claimed caused the injury to the Concordia resulting in the accidental injury to the plaintiff, and his alleged allegations in his declaration in his suit against the insurance company. As between the plaintiff, without fault, and the insurance company, and within the meaning of the insurance policy, the injury was accidental, and he might well aver that “on the steamer Concordia he incurred a bodily injury by accidental means, and caused directly, solely, and independently of all other causes or means,” etc. See adjudged cases in point cited volume 1, Words and Phrases, pp. 62, 63. Many accidents are traceable more or less remotely to the negligence of third parties, and the plaintiff’s right of recovery depends upon his ability to prove that the proximate cause, the causa causans, of his injury was the negligence of the defendant.

The judgment is reversed, and the cause is remanded for further proceedings according to law.