George v. Iowa & S. W. Ry. Co.

• Decision Date: 24 June 1918
• Docket Number: No. 30562.,30562.
• Citation: 183 Iowa 994,168 N.W. 322
• Court: Iowa Supreme Court
• Parties: GEORGE v. IOWA & S. W. RY. CO.

183 Iowa 994

168 N.W. 322

GEORGE

v.IOWA & S. W. RY. CO.

No. 30562.

Supreme Court of Iowa.

June 24, 1918.

Appeal from District Court, Page County; E. B. Woodruff, Judge.

In this, a suit to recover damages for the alleged negligence of defendant claimed to have resulted in the death of one John J. George, a motion to direct verdict for the defendant was sustained at the close of the testimony for the plaintiff, and she appeals. Reversed and remanded.Earl R. Ferguson and C. R. Barnes, both of Shenandoah, for appellant.

Orr & Turner, of Clarinda, for appellee.

SALINGER, J.

[1] I. The appellee insists the trial court was justified in directing verdict against the appellant on the authority of Meyer v. Houck, 85 Iowa, 319, 52 N. W. 235, which, in effect, abrogates the scintilla of evidence rule theretofore prevailing in this jurisdiction and empowers the court to direct a verdict against the party having the burden of proof, if the testimony is in such condition that if the verdict should be returned for that party the court would unhesitatingly set the same aside. Appellee urges that in applying the Meyer Case this court should take into consideration that the trial court saw and heard the witnesses. The Meyer Case did not intend to substitute the judge for the jury; and, in passing upon whether a verdict was rightly directed, we are not at liberty to aid the ruling by considering the advantage the trial judge had because the living witnesses were before him. Notwithstanding this valuable advantage, we must determine from the record before us whether there was such an absence of evidence for the plaintiff as to justify a direction of verdict for the defendant.

[2][3] II. So proceeding, it seems to us to be beyond dispute that on the vital premise of one phase of this appeal there is no serious controversy. Whatever the effect of it may be, it is beyond question that the jury could find the following things from the evidence: (1) That the roadbed was unballasted, rough, and uneven; (2) that a train going at 8 or 10 miles an hour at the point where decedent was injured would be caused thereby to sway, jerk, jump, to take up slack roughly, and that conditions generally made it possible that one upon the train would be thrown from it; (3) this tendency to lurch and sway would be increased when, as was the fact here, the supply of coal in the tender was low, thus making the train lighter. Speaking of the very part of the roadbed upon which the train was being operated when decedent was injured, one witness says that at that point “it is just up and down and just wabbly and any other way, just low places and high places, not even at all.” Another says that at this particular place the track was not very even, and was pretty rough, and there was no ballast at this point; that at the point in question there is a hump, and the effect of this upon the tender in going over was that one could feel the shock when the engine swings onto it and on dropping back after the engine got across it; that the engine would seem to run down there and take the slack of the train with a jerk when the engine once more dipped upward; that the rough track will make the engine bounce around. One witness says it was awful rough just before this point was reached, and in going upon a bridge in that immediate neighborhood the track was awful rough, and that when they got on the bridge they would “just jump off again.” It is also testified there was a lot of slack and as the engine would roll over the bridge it would jerk that slack around; that this would cause a jerking and jumping and rocking, just rocking back and forth, and it would jerk every way.

Assume there may be debate over what deduction might rightly be drawn by a jury from this evidence, yet the evidence does exist. This record is not one wherein there is no evidence to support a claim that there was this roughness and swaying, and the question is whether their existence made it for the jury whether these conditions caused decedent to fall from the train.

2a. We are justified in saying that on the whole case appellee does not so much question that under the testimony it might be true that decedent came to his death as the plaintiff claims, but takes the position that this is no more probable or possible than that decedent might have been stricken by an attack of heart trouble, vertigo, and the like, and thus have come to fall from the train. Again, appellee does not so much urge it was impossible for the death to have resulted from contact with the post, but insists rather that that is no more possible than that the man was already dead when he fell from the train because of something not due to the negligence of defendant. In other words, the main defense of the judgment below is that the testimony was in equipoise as matter of law.

The law on the point is well settled:

Undoubtedly it is not enough there is a mere possibility that the injury is chargeable to the negligence of defendant, and a recovery may not rest wholly on conjecture. Lunde v. Cudahy, 139 Iowa, at 697, 117 N. W. 1063. There is no case for a jury where the evidence leaves the happening of the accident a mere matter of conjecture and as consistent with the theory of absence of negligence as with its existence. Tibbitts v. Railroad, 138 Iowa, 178, 115 N. W. 1021. Undoubtedly the plaintiff fails if as matter of law the testimony is in equipoise. Neal v. Railway, 129 Iowa, 5, 105 N. W. 197, 2 L. R. A. (N. S.) 905;Asbach v. Railway, 74 Iowa, 251, 37 N. W. 182;Rhines v. Railway, 75 Iowa, 597, 39 N. W. 912. Undoubtedly it does not suffice where a conclusion which is consistent with the theory of the plaintiff is as matter of law equally consistent with some other theory. Wheelan v. Railway, 85 Iowa, 167, 52 N. W. 119. But as said in Lunde v. Cudahy, 139 Iowa, at 697, 117 N. W. 1063, this does not require plaintiff to prove either negligence or proximate cause beyond a reasonable doubt, and where the proven circumstances are such that different minds may reasonably draw different conclusions, or where all the known facts point to the negligence of the defendant as the cause, then, though the evidence be wholly circumstantial, proximate cause is for a jury. 139 Iowa, 688, 117 N. W. 1063. It suffices that inferences which plaintiff demands may fairly be drawn. Railway v. Leslie, 112 Ark. 305, 167 S. W. 89, Ann. Cas. 1915B, 834, approving Railway v. Hempfling, 107 Ark. 476, 156 S. W. 171.

The true test is well stated in Schoepper v. Chemical Co., 113 Mich. 582, 71 N. W. 1081, wherein it is said that the rule where the case rests wholly in conjecture does not apply if there is room for balancing the probabilities and for drawing reasonable inferences better supported on one side than the other, even though the evidence for the theory of plaintiff is rebutted but without disclosing any other probable cause.

It is said in Lunde v. Cudahy, 139 Iowa, at 701, 117 N. W. 1063, if any testimony bears on the question at issue and there is afforded room for fair-minded men to conclude therefrom that one theory of the case is better supported than the other, the question cannot properly be withdrawn from the jury; that plaintiff is not bound to exclude the possibility that the accident might have happened in some way other than claimed by plaintiff, because to require this would be to require plaintiff to make his case beyond a reasonable doubt. When a cause is shown which might produce an accident in a certain way and an accident happens in that manner, then, in the absence of a showing of other cause, it is a warrantable presumption that the cause indicated in the testimony was the operative agency in bringing about the result. Brownfield v. Railway, 107 Iowa, at 258, 77 N. W. 1038;Lunde v. Cudahy, 139 Iowa, 701, 702, 117 N. W. 1063;Settle v. Railroad, 127 Mo. 336, 30 S. W. 125. In establishing that injury is due to negligence either by direct or circumstantial evidence the plaintiff need not negative every other conceivable hypothesis which might account for the injury. It is only where opposing theories of the accident are equally in accord with the proven facts that the evidence of the plaintiff fails as matter of law. Gordon v. Railway, 146 Iowa, 588, 123 N. W. 762. An efficient and adequate cause of an injury may be termed the real or proximate cause thereof unless another cause not incidental to such cause but independent of it has intervened and caused the injury. Davis v. Lumber Co., 164 Ind. 413, 73 N. E. 899. If several proximate causes contribute to an accident and each or all may be an effective cause, the result may be attributed to any or all of these causes. Burk v. Creamery Co., 126 Iowa, 730, 102 N. W. 793, 106 Am. St. Rep. 377.

The facts in Railroad v. Leslie, 112 Ark. 305, 167 S. W. 90, Ann. Cas. 1915B, 834, and in Rickerd v. Railway, 141 Fed. 905, 73 C. C. A. 139, are in many respects like those at bar, and in these it was held that there was a case for a jury.

2b. Plain as all this seems to be, the parties conflict sharply on how it bears upon their case. The appellant contends that, if the jury can reasonably find from the evidence that the negligence of defendant furnished cause adequate to produce the injury suffered, there is a case for the jury. The appellee construes our decisions that the plaintiff must fail where the testimony on liability is in equipoise to mean that if the trial court or this court are of opinion the testimony is in equipoise, and reach such conclusion because the injury is possible upon some theory other than the one advanced by plaintiff, and such other possible cause is not excluded, then there is a case for a directed verdict. If this be so, then, though the jury may reasonably find that a shot fired by the defendant caused death, a verdict must be directed for the defendant if in the opinion of the court it is possible that some one other than defendant fired the...