George v. Iowa & S.W. Ry. Co.
| Decision Date | 24 June 1918 |
| Docket Number | 30562 |
| Citation | 168 N.W. 322,183 Iowa 994 |
| Parties | ANNA L. GEORGE, Appellant, v. IOWA & SOUTHWESTERN RAILWAY COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Page District Court.--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.
Reversed and remanded.
Earl R Ferguson and C. R. Barnes, for appellant.
Orr & Turner and Tinley, Mitchell & Pryor, for appellee.
I.
The appellee insists the trial court was justified in directing verdict against the appellant, on the authority of Meyer & Bros. 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, should the verdict be returned for that party, the court would unhesitatingly set the same aside. Appellee urges that, in applying the Meyer case rule, 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.
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 to 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 wobbly 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.
2-a
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 Packing Co., 139 Iowa 688, 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. Mason City & Ft. D. R. Co., 138 Iowa 178, 115 N.W. 1021. Undoubtedly, the plaintiff fails if, as matter of law, the testimony is in equipoise. Neal v. Chicago, R. I. & P. R. Co., 129 Iowa 5, 105 N.W. 197; Asbach v. Chicago, B. & Q. R. Co., 74 Iowa 248, 251, 37 N.W. 182; Rhines v. Chicago & N.W. R. Co., 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. Chicago, M. & St. P. R. Co., 85 Iowa 167, 52 N.W. 119. But, as said in Lunde v. Cudahy Packing Co., 139 Iowa 688, 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. It suffices that inferences which plaintiff demands may fairly be drawn. Kansas City So. R. Co. v. Leslie, 112 Ark. 305 (167 S.W. 83, 89), approving St. Louis, I. M. & S. R. Co. v. Hempfling, 107 Ark. 476 (156 S.W. 171).
The true test is well stated in Schoepper v. Hancock 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 688, 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. Chicago, R. I. & P. R. Co., 107 Iowa 254, at 258, 77 N.W. 1038; Lunde v. Cudahy, 139 Iowa 688, 701, 702, 117 N.W. 1063; Settle v. St. Louis & S. F. R. Co., 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. Chicago, R. I. & P. R. Co., 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. Mercer 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 Pkg. Mfg. Co., 126 Iowa 730, 102 N.W. 793.
The facts in Kansas City So. R. Co. v. Leslie, 112 Ark. 305 (167 S.W. 83, at 90), and in Rickerd v. Chicago, St. P., M. & O. R. Co., 141 F. 905, are, in many respects, like those at bar; and in these it was held that there was a case for a jury.
2-b
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...
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