Biddle v. Jacobs

Smith, J., (after stating the facts). (1) Appellant invokes the rule that, where the evidence as to the cause of death, or any other effect, leaves the question to conjecture between causes for which appellant would not be ’liable and a cause or causes for which it would be liable, the appellee must fail. (2) That this is the law is well settled by the decisions of this court. In the case of Railway v. Henderson, 57 Ark. 414, Justice Mansfield quoted with approval from the case of Smith v. Bank, 99 Mass, 605, the following language:/‘When the evidence tends equally to sustain either of two inconsistent propositions, a verdict in favor of the party bound to maintain one of them against the other is necessarily wrong.” (3-1-5) Verdicts can not be predicated upon conjecture, and to apply that principle to the facts of this case, it may be said that it is not sufficient that a reasonable view of the evidence is that the collision might have ■caused deceased’s injury. It is essential under the issues in this case that a preponderance of the evidence should show that his death resulted from the injury received in the collision. Such proof is not required; however, to exclude all doubt on the subject, nor is it required that the proof show the death could not, or that the death did not, in fact, result from a tumor, or some other cause not attributable to the collision. But it is sufficient if the evidence reasonably warrants the jury in finding from a preponderance of the evidence that deceased’s death did, in fact, result from an injury received in this collision. If that finding rests upon mere speculation or conjecture, it can not be 'said to be warranted by the evidence. A number of authorities on this subject were reviewed in the opinion in the recent case of Denton v. Mammoth Spring Electric Light & Power Co., 105 Ark. 161. And other authorities are cited in the more recent case of St. Louis, Iron Mountain & Southern Ry. Co. v. Hempfling, 107 Ark. 476. In this last named case there was quoted with approval, from the case of Settle v. St. Louis & S. F. Rd. Co., 127 Mo. 336, the following language: “In actions for damages on account of negligence plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal 'Connection must be proved by evidence, as .a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” (6) Does the evidence in this case meet the requirements above stated? We think the jury’s finding is based upon evidence legally sufficient to sustain the verdict. Here there were no premonitory symptoms of an approaching tumor, which is shown to be a disease which very gradually makes its appearance and very gradually accomplishes its deadly work. Deceased left 'his home- a well man and returned within a week noticeably changed in his appearance. The only physician who testified in the case stated that appellant could have received the injury from which he died in this collision and testified that a collision was a very good place to get an injury such as, in his opinion, caused deceased’s death. Indeed, there is no cause assigned for deceased’s condition except that he did sustain an injury in this collision, and it is only surmise and conjecture that there might have been some other cause. Under this state of the proof we do not feel disposed to overturn the verdict of the jury. The failure to have an .autopsy performed was a circumstance to be considered by the jury, but we can not say as a matter of law that that failure must defeat a recovery. The judgment is affirmed.