Joseph McKenna

“ The evidence of defendant in error (petitioner) was that at the time Mathews was killed he was being transported as a passenger over the railway of plaintiff in error, and that the train upon which he was riding was thrown from the track, resulting in his death and the death of ten other persons. The plaintiff in error then offered witnesses and depositions to sustain the allegations of its answer. ”

“ The answer of the company denied negligence, and alleged that the derailment was caused by some person or persons unknown to the company, and not in its employment or under its control, who wilfully, maliciously, and feloniously removed and displaced from the track certain spikes, nuts, angle-bars, fishplates, bolts, and rails, and otherwise tore up and destroyed the track. ”