¶1I am unable to concur in the opinion of the court in this case. The cause of the breaking of the clamp has not been proven There is no evidence except of the fact that an accident happened, and the way in which it happened. What caused the breaking of the clamp is left to mere conjecture. There is nothing to show that the iron of which it was made was defective. It had been used only a few weeks, and with safety, and there is no proof whatever of the derrick ever having been overweighted. There is the testimony of one witness that after the clamp fell he glanced at it casually, and saw near the fracture in the iron a spot which at first he spoke of as being rust, from which it is inferred that the interior of the metal must have been subjected to the corosion of atmospheric influence, and that the fracture, therefore, existed some time before the break occurred; but in his cross-examination this witness swears that he could not tell whether the spot was rust or paint. That the clamp had been put to some extraordinary or excessive strain is merely a conjecture. The inferences from which negligence of the defendant is sought to be drawn result only from the testimony of expert witnesses dealing with a supposed state of facts, of the actual existence of which there is no proof whatever in the record.
¶2*208It does not suffice to establish negligence to call expert witnesses as to the effect of certain conditions unless there is some substantial proof that such conditions or some of them really existed. This is a case in which the cause of the breaking of the iron is purely speculative, and I think the complaint was properly dismissed.
¶3Van Brunt, P. J., concurred.
¶4Judgment reversed, new trial ordered, costs to appellant to abide event.