n v. C.R.I. P.R. Co. 278 S.W. 96; Kalbach v. Philadelphia R.R. Co. 121 A. 204; Midland Valley R. Co. v. Rupe, 210 P. 1038; Kansas City S.R. Co. v. Henderson, 54 Okla. 320, 153 P. 872; Bowden v. Ry. Co. (Mo.) 175 S.W. 252; Weber v. Davis, 200 N.W. 207; Bush v. Michigan C.R. Co. 157 N.W. 285; Hewitt v. Ry. Co. 137 N.W. 66. Mere proof of a foul right of way without evidence that the fire was set out by a spark from a passing engine is insufficient to establish actionable negligence. It has been repeatedly held that, in addition to the foul condition of the defendant's right of way, plaintiff must prove that the fire was set out by the defendant in order to establish negligence. Wilson v. Tilphman Lumber Co. 139 S.E. 761; Scherer v. Schlaber Griffin, 18 N.D. 421; Bank v. Bismarck Elevator Inv. Co. 31 N.D. 102; Rosenbaum v. Hayes, 8 N.D. 461; Bisbee v. Same (Me.) 92 A. 616; Union P.R. Co. v. Fickenscher (Neb.) 110 N.W. 561; Searles v. Ry. Co. 5 N.E. 66; White v. Ry. Co. 115 N.E. 439; Ford v. McAdoo, 131 N.E. 874. It is firmly established everywhere that, as a general rule, when a disinterested witness, who is in no way discredited by other evidence, testifies to a fact within the knowledge of such witness, which is not in itself improbable, or in conflict with other evidence, the witness is to be believed, and the facts so given are to be taken as legally established.

" Indeed even this statement, if it means that to make out a prima facie case a plaintiff must not only show facts from which the defendant's causal negligence might be inferred, that is, provide a possible hypothesis for a verdict in his favor as in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, but must also go further and show a rational basis for choosing his hypothesis over inconsistent ones, that is, provide a rational basis for the conclusion that it is somewhat more probable than not that his hypothesis is correct, may be an overstatement of the quantum of proof required since in Ford v. McAdoo, 231 N.Y. 155, 131 N.E. 874, 876, the writer of the majority opinion states the broad rule that a plaintiff has not sustained his burden of proof when inconsistent inferences from circumstantial evidence are equally probable and then goes on to say "with this view of the case some of my Associates do not agree." See also White v. Lehigh Valley R. Co., 220 N.Y. 131, 136, 115 N.E. 439, 441, in which it is said: "It is enough if he [a plaintiff] shows facts and conditions from which negligence of a defendant and the causation of the accident by the negligence may be reasonably and legitimately inferred," and in addition see Warner v. New York, O. W.R. Co., 209 App. Div. 211, 213, 204 N.Y.S. 607, 609, where it is said: "It is the province of the jury, not only to pass upon conflicting evidence, but, where different inferences may be drawn from the evidence, to draw the inferences.

Again, more than divergent accounts are necessary for Plaintiff to satisfy his burden of proof and establish that he was terminated without cause. See e.g. Rinaldi & Sons, Inc., 39 N.Y.2d at 196 (citing Ford v. McAdoo, 231 N.Y. 155, 160-61 (1921)); Matter of Erin Wine & Liquor Store, Inc. v. O'Connell, 128 N.Y.S.2d 364, 367 (N.Y. App. Div. 1954) (internal citations omitted); D 'Amico, 569 N.Y.S.2d at 964. Here, the evidence as a matter of logical necessity is equally balanced.

Plaintiff has the burden of proving his case by a fair preponderance of the credible evidence. If, at the close of the proofs, the evidence as a matter of logical necessity is equally balanced, plaintiff has failed to meet his burden and the cause of action is not made out (e.g., Ford v McAdoo, 231 N.Y. 155, 160-161; Matter of Erin Wine Liq. Store v O'Connell, 283 App. Div. 443, 446, affd 307 N.Y. 768, and cases cited; cf. Roberge v Bonner, 185 N.Y. 265, 269; Richardson, Evidence [10th ed], § 97, p 74). In the present case, given that receipt even of an uncoded signal, indicating a break in the line, is one which "might indicate illegal entry", Rinaldi did not meet its burden of proving that the failure to report was the cause of the burglary loss.

This case comes under the influence of the case of Crosswhite v. Southern R. Co., 181 Va. 40, 23 S.E.2d 777, where this quotation was approvingly cited: "An employee cannot recover for a violation of the statutory duty to provide safety appliances, such as the Boiler Inspection Act requires, unless the failure to comply with the statute is a proximate cause of the accident which results in his injury; as it merely creates a condition or situation in which the accident happens from other causes, there is no liability. * * * * Ford v. McAdoo, 231 N.Y. 155, 131 N.E. 874; Fredericks v. Erie R. Co., 36 F.2d 716; Anderson v. Baltimore, etc., R. Co., 89 F.2d 629. To our minds the fence with its barbed wire merely created a condition or situation, which had existed for many years, which the child used, unwittingly, resulting in the accident.

(c) And where the contrivance was mechanically in good order although it may have been so protruded as to constitute a danger it was generally held that it would preclude recovery under the Boiler Inspection Act. Ford v. McAdoo, 231 N.Y. 155, 131 N.E. 874; Contra see Frye v. Chicago R.I. P. Ry. Co., 157 Minn. 52, 195 N.W. 629, 196 N.W. 280. (d) There was a fortiori no liability where the equipment or appliances were in good working order but the injury occurred because of faulty operation.

* * *" See also Ford v. McAdoo, 231 N.Y. 155, 131 N.E. 874 and Fredericks v. Erie R. Co., 36 F.2d 716. "An employee cannot recover for a violation of the statutory duty to provide safety appliances, such as the Boiler Inspection Act requires, unless the failure to comply with the statute is a proximate cause of the accident which results in his injury; if it merely creates a condition or situation in which the accident happens from other causes, there is no liability. * * *" Anderson v. Baltimore, etc., R. Co., 89 F.2d 629, which is the same case subsequently reported in 96 F.2d 796.

This instruction was too board and excluded evidence proper for the jury's consideration. [Ford v. McAdoo (N.Y.), 131 N.E. 874, 876 (certiorari denied, 257 U.S. 641).] For the error in submitting the case on plaintiff's Instruction No. 2, the judgment is reversed and the cause remanded.

A verdict resting on guesswork cannot stand. A., T. S.F. Railroad Co. v. Toops, 281 U.S. 351, 50 Sup. Ct. 281; C., M. St. P. Railroad Co. v. Coogan, 271 U.S. 472, 46 Sup. Ct. 564; Gulf M. N. Railroad Co. v. Wells, 275 U.S. 455, 48 Sup. Ct. 151; K.C. So. Ry. v. Jones, 276 U.S. 303, 48 Sup. Ct. 308; Toledo, St. L. W. Railroad Co. v. Allen, 276 U.S. 165; Sekinoff v. Severin Co., 53 F.2d 733; Ford v. McAdoo, 131 N.E. 874; White v. Lehigh Valley Ry., 115 N.E. 439; Asbach v. Railroad Co., 37 N.W. 182; C.R.I. P. Railroad Co. v. Rhoades, 68 P. 58; 2 Roberts Fed. Liability of Carriers, 1326-27; Looney v. Railroad Co., 200 U.S. 485; Condon v. Schoenfeld, 214 Ill. 231; Patton v. Railroad Co., 179 U.S. 658; Penn. Railroad v. Chamberlain, 53 Sup. Ct. 391; N.Y. Central Railroad v. Ambrose, 288 U.S. 490; Fryer v. St. L.-San F. Ry. Co., 63 S.W.2d 47; Robison v. Ry. Co., 64 S.W.2d 660. Eagleton, Henwood Waechter for respondent.

"The evidence fails to show any defect in the appliance, or any condition thereof rendering it unsafe to operate, within the terms of the federal law; hence the injury to plaintiff cannot be found to have been proximately caused or contributed to by any violation of that law." Other cases holding in various situations that the plaintiff failed to produce sufficient evidence of any defect to show a condition which would violate the Boiler Inspection Act are: Ford v. McAdoo (N.Y.), 131 N.E. 874, certiorari denied Ford v. Davis, 257 U.S. 641, 42 Sup. Ct. 52, 66 L.Ed. 411; Tatom v. Seaboard Air Line Ry. (Fla.), 113 So. 671; Watson v. G.S. F. Ry. Co. (Ga.), 136 S.E. 921; Luce v. N.Y.C. St. L. Railroad Co., 205 N.Y.S. 273, affirmed, 147 N.E. 212; Auschwitz v. Wabash Ry. Co. (Ill.), 178 N.E. 403; Mahutga v. M., St. P. S.S.M. Ry. Co. (Minn.), 234 N.W. 474; Fredericks v. Erie Railroad Co., 36 F.2d 716; Ford v. N.Y., N.H. H. Railroad Co., 54 F.2d 342; Lynch v. Delaware, L. W. Railroad Co. (C.C.A.), 58 F.2d 177. In the latter case, which is the most recent decision of one of the United States Circuit Courts of Appeal and which was a boiler explosion case, the plaintiff's theory was that there was a defective condition of an injector which forces water from the tank into the boiler.