Hurt v. Charles J. Rogers Transp. Co.

• Decision Date: 14 December 1955
• Docket Number: No. 34376,34376
• Citation: 58 O.O. 122,164 Ohio St. 329,130 N.E.2d 820
• Parties: , 58 O.O. 122 HURT, Appellee, v. CHARLES J. ROGERS TRANSPORTATION CO., Appellant, et al.
• Court: Ohio Supreme Court

Page 329

164 Ohio St. 329

130 N.E.2d 820, 58 O.O. 122

HURT, Appellee, v. CHARLES J. ROGERS TRANSPORTATION CO., Appellant, et al.

No. 34376.

Supreme Court of Ohio.

Dec. 14, 1955.

Syllabus by the Court.

1. An inference based solely and entirely upon another inference, unsupported by any additional fact or another inference from other facts, is an inference on an inference and may not be indulged in by a jury.

2. An inference which is based in part upon another inference and in part upon facts is a parallel inference and, if reasonable, may be indulged in by a jury.

3. It is permissible for a jury to draw several conclusions of presumptions of fact from the same set of facts and equally permissible for a jury to use a series of facts or circumstances as a basis for ultimate findings or inferences.

4. The weight of an inference as well as the weight of the explanation offered to meet the inference is for the determination of the trier of the facts, unless the explanation is such that reasonable minds could not reach different conclusions as to its preponderating value when measured against the weight of the circumstantial evidence.

For a statement of the case, see Hurt v. Charles J. Rogers Transportation Co., Ohio, 130 N.E.2d 824.

The cause is before this court upon the allowance of Rogers' motion to certify the record.

McConnell, Blackmore, Cory, Burke & Kundtz, Cleveland, S. Burns Weston and Mark O'Neill, Cleveland, for appellant.

Harrison, Spangenberg & Hull, Cleveland, for appellee.

BELL, Judge.

The sole question presented by this appeal is whether, as a matter of law, Rogers is entitled to final judgment.

Rogers bases its right to judgment as a matter of law on three contentions: 1. There is no proof that Rogers was negligent. 2. The inferences upon which plaintiff must rely are not permissible because (a) they are not reasonable and (b) they spring from other inferences. 3. Plaintiff's inferred facts were rebutted by uncontradicted direct evidence.

Rogers bases its first contention on the fact that no one knows where the forging that struck plaintiff came from; that there are several probabilities just as reasonable as the one that it fell from Rogers' outfit, such as (a) that the forging could just as well have left Canton before August 20, 1948, (b) that any one of several other truck lines could have carried it from Canton prior to August 20 and lost it from its load, (c) that the forging could have been picked up between the duals of another truck and thrown from them as it passed plaintiff, or (d) that the forging could have been lying on the road without any possible relationship to Rogers and could have been flipped by the wheels of a passing vehicle.

Rogers argues that a choice between such possibilities (designated 'probabilities' by Rogers) brings this case within the rule that, where the cause of an injury may as reasonably be an act for which defendant is not liable as one for which he is liable, the plaintiff has not sustained the burden of showing that his injury was a proximate result of the negligence of the defendant. Gedra v. Dallmer Co., 153 Ohio St. 258, 91 N.E.2d 256, 17 A.L.R.2d 453; Gerich v. Republic Steel Corp., 153 Ohio St. 463, 92 N.E.2d 393.

Admitting these possibilities, they were matters for argument and for consideration by the jury. Such possibilities might well be excluded by reasonable minds in the face of evidence and concessions that the particular forging was made by Ford, that a box of forgings similar thereto were transported by Rogers' truck, that the Rogers outfit operated by Carr was the only one to leave Ford's plant with such forgings before the evening of August 20, 1948, that Carr was the only Rogers driver on route 2 that day (except one Larry Gray who was hauling sheet steel and who helped Carr attempt to repair a box at Red Gables and one Jesse Nutt who left the Canton Ford plant long after this accident occurred), that forgings carried by Carr were seen to fall from his semi-trailer and bounce as high as the telephone wires, and that loose parts were seen on the trailer. In our opinion, from evidence such as this reasonable minds could conclude that the forging came from Rogers' outfit as a result of Rogers' negligence.

Rogers bases its second contention upon the rule announced by this court in Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634, that an inference of fact can not be predicated upon another inference but must be predicated upon a fact supported by evidence.

As so aptly said by Judge Fess in the opinion of the Court of Appeals, 116 N.E.2d 21, 25, 'it is comparatively simple to understand the principle of no inference upon an inference as demonstrated in Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634, but one of the most misunderstood and often inaccurately applied doctrines of the law is that which purports to preclude the basing of a presumption on a presumption, or an inference upon an inference.'

In 1 Wigmore on Evidence (3 Ed.), 434, Section 41, the same thing is stated in more detail as follows:

'It was once suggested that on '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; that this suggestion has been repeated by several courts, and sometimes actually enforced.

'There is no such orthodox 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; from this we argue that he had a design to sue 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 (until in very modern times) 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...