Gypsy Oil Co. v. Ginn

• Decision Date: 08 September 1931
• Docket Number: Case Number: 19781
• Citation: 1931 OK 496,3 P.2d 714,152 Okla. 30
• Parties: GYPSY OIL CO. v. GINN et al.
• Court: Oklahoma Supreme Court

1931 OK 496

3 P.2d 714

152 Okla. 30

GYPSY OIL CO. v. GINN et al.

Case Number: 19781

Supreme Court of Oklahoma

Decided: September 8, 1931

Syllabus

¶0 1. Negligence--Injury to Trespasser--Proof to Establish Liability Under Doctrine of Last Clear Chance.

There is no obligation or duty resting upon the owner of premises to keep a lookout for trespassers thereon, nor to assume or anticipate that a trespasser, for his own pleasure or convenience, will assume a position of peril on such premises; and, to establish liability under the so-called humanitarian doctrine, or doctrine of the last clear chance, it is necessary to prove: (1) That the trespasser was in a place of danger; (2) That he was seen in such place of danger by the owner or an agent or servant of the owner; and (3) a failure thereafter to use ordinary care to avert injury.

2. Evidence--Inferences from Other Inferences

The statement that there cannot be an inference upon an inference is not a principle of law or logic, an inference upon an inference being permitted if the first inference is a justifiable conclusion from evidence, testimonial or circumstantial, and if the second inference is a justifiable conclusion from the first inference by itself or in connection with other evidence, testimonial or circumstantial. It is in each case a matter of the relevancy and weight of the evidence.

3. Same--Negligence--Basis for Inference of Negligence.

An inference of negligence must be based upon something other than mere conjecture or speculation, and it is not sufficient to introduce evidence of a state of facts simply consistent with or indicating a mere possibility, or which suggests with equal force and leaves fully as reasonable an inference of the nonexistence of negligence. The inference of negligence must be the more probable and more reasonable inference to be drawn from the evidence.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Action for wrongful death by Mrs. Tessie Ginn, for herself as mother and next friend of Alfred and Hugh Ginn, minors, against the Gypsy Oil Company. Judgment for plaintiff, and defendant appeals. Reversed with directions.

James B. Diggs, William C. Liedtke, Russell G. Lowe, Redmond S. Cole, and C. L. Billings, for plaintiff in error.

I. R. Mason and Geo. A. Ahern, for defendants in error.

SWINDALL, J.

(1) This is the third appeal in this case, a judgment in favor of the plaintiffs having been reversed in an opinion reported in 88 Okla. 99, 212 P. 314, and a judgment also in favor of the plaintiffs having been reversed in an opinion reported in 115 Okla. 76, 241 P. 794. The present appeal is by the defendant from an order overruling its motion for a new trial after a third verdict in favor of the plaintiffs, and from the overruling of the defendant's motion for a directed verdict. The case involves the doctrine of the "last clear chance," and in the opinion on the second appeal the court held the deceased to be a trespasser, and announced the doctrine that there was no duty owed by the defendant to warn the deceased against placing himself in a position of danger, but only the duty of avoiding injuring him after observing him in a place of danger, and in defining the duty the court said that there was no liability in such a case if it were impossible after seeing him to avoid the injury. We are not satisfied with the definition of the duty so announced, as it literally imposes upon the defendant too heavy a burden, that of proving it to have been impossible to avoid the injury; as a matter of fact, even had the deceased been discovered in a place of danger, there would be no liability unless the defendant could then have avoided the injury by the exercise of ordinary care, and the burden of showing a failure to exercise ordinary care would be upon the plaintiffs. This rule is announced in: Oklahoma City Railway Co. v. Barkett, 30 Okla. 28, 118 P. 350; Atchison, T. & S. F. Ry. Co. v. Baker, 21 Okla. 51, 95 P. 433, 16 L.R.A. (N.S.) 825; Clark v. St. L. & S. F. R. Co., 24 Okla. 764, 108 P. 361; Crystal Ice & Ice Cream Co. v. Wood, 53 Okla. 592, 157 P. 904. To recover in this case it would be necessary for the plaintiffs to prove: (1) That the deceased was in a place of danger; (2) that he was seen in such place of danger by a servant of the defendant in time to have averted injury; and (3) a failure thereafter to use ordinary care to avert the injury.

¶1 And in the former appeals in this case it was held that a primary issue was whether the deceased was seen in a place of danger, that he was a trespasser, and that the defendant was under no duty to warn him against getting in a dangerous position.

(2) The plaintiff in error urges numerous assignments of error, one of which was the overruling of its objection to the introduction of evidence in support of the second amended petition, the objection having been made because it was contended that the petition was demurrable and failed to state a cause of action for the reason that the allegation that "said employees did know, or could have known by the exercise of reasonable diligence, the position of said Ginn at the time said machine was started," being in the alternative, was not a positive allegation of either alternative, and that the latter alternative did not charge a breach of any duty, with the result that the petition failed to charge the breach of any duty. Overruling the objection was error. The rule as to alternative allegations is stated in 21 Ruling Case Law, at page 451, as follows:

"A pleading must state the cause of action by direct averments, and not by averments in the alternative. In general a violation of this rule vitiates the pleading. Where the only effect of such allegations is to make the pleading uncertain, the remedy is by motion; but where the complaint alleges in the alternative two statements of fact, one of which is sufficient to constitute a cause of action and the other not, they neutralize each other, and demurrer will lie."

¶2 The latter part of the rule applies in this case and it was applied in the following cases: Stricklin v. Chicago, M. & St. P. Ry. Co., 59 Mont. 367, 197 P. 839; Grout v. Central Electric Ry. Co., 125 Mo. App. 552, 102 S.W. 1026; Anderson v. Minneapolis, St. P. & S. S. M. Ry. Co., 103 Minn. 224, 114 N.W. 1123; Knoor v. Reineke, 38 Idaho 658, 224 P. 84; Baker v. Shafter (Tex. Com. App.) 231 S.W. 349; Ball v. Youngblood (Tex. Civ. App.) 252 S.W. 872. Overruling the objection to the introduction of evidence left in the case under the pleadings on which trial was had, and, so far as issues under the allegations were concerned, an alternative ground disapproved and eliminated from the case by the opinion on the second appeal.

¶3 On the contention that the verdict was not sustained by the evidence, in addition to a review of the evidence, the plaintiff in error urges that it is a legal principle that there cannot be an inference upon an inference. That is a common expression, and it also appears in the form that "there cannot be a presumption upon a presumption," and that an "inference (or presumption) must be based upon an established fact." The existence of such a principle, either of logic or law, has been vigorously denied and wholly refuted by the highest authority upon the law of evidence, in the following language:

"It was once suggested that 'an inference upon an inference' will not be permitted, i. e., that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by a few courts, and sometimes actually enforced. There is no such rule, nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant's gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased. Or, the defendant is shown to have been sharpening a knife; and from this we argue that he had a design to use it upon the deceased; and from this we argue that the fatal stab was the result of this design. In these and innumerable daily instances we build up inference upon inference, and yet, no court ever thought of forbidding it. All departments of reasoning, all scientific work, every day's life and every day's trials, proceed upon such data. The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon." Wigmore on Evidence (2d Ed.) vol. 1, sec. 41, pp. 258-260.

¶4 Another author attempts to draw a distinction in support of the rule but he seems to wind up in pretty thorough accord if his statements are considered with regard to correct definitions of the terms used. His language is as follows:

"The proposition that one inference cannot be founded on or drawn from another inference rests upon ample authority. It must be received, however, with certain qualifications. One eminent legal author in calling it a fallacy says":--(Quoting from Wigmore as above)--"McCabe, J., of the Supreme Court of Indiana, in a case of murder sought to be established by circumstantial evidence, said: 'This process of tallying and confirming each circumstance by the others does not infringe the general rule that one inference cannot be based on another. There is an important exception to that rule, however. A fact in the nature of an inference may itself be taken as the basis of a new inference, whether intermediate or final, provided the first inference have the required basis of a proved fact. In short, it is not merely the sum of the simple probabilities created by the numerous individual circumstances pointing to and indicating the absence of burglars and all other human beings than appellant and his wife at the scene of the murder, but it is the compound ratio of them all, tallying with and

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