Star v. Brumley

• Decision Date: 07 February 1928
• Docket Number: Case Number: 17854
• Citation: 1928 OK 106,129 Okla. 134,263 P. 1086
• Parties: STAR v. BRUMLEY.
• Court: Oklahoma Supreme Court

1928 OK 106

263 P. 1086

129 Okla. 134

STAR v. BRUMLEY.

Case Number: 17854

Supreme Court of Oklahoma

Decided: February 7, 1928

Syllabus

¶0 1. Negligence--Proximate Cause of Injury--Burden of Proof on Plaintiff.

In order to recover damages for an injury because of negligence, the burden is on the plaintiff, not only to show negligence, but to prove that such negligence was the proximate cause of the injury.

2. Highways -- Automobiles -- Action for Personal Injuries--Proof of Negligence of Driver by Circumstantial Evidence.

In an action for damages for injuries received by reason of alleged negligence of the defendant in driving an automobile over the plaintiff, such negligence may be established by circumstantial evidence, but the circumstances must be proved, and not themselves presumed.

3. Same--Evidence--One Presumption May not Be Based on Another.

Although a presumption of fact may arise from a proven circumstance in such case, such presumption cannot become a circumstance in the proof, as a basis for another presumption.

4. Same--Causal Connection not Established by Inference Based on Inference.

Since the alleged negligence must be the proximate cause of the injury in order to justify recovery, the causal relation between the alleged negligence and the injury cannot be established by an inference based on an inference.

5. Same--Insufficiency of Evidence in Action Against Driver of Automobile.

Record examined; held, that the evidence fails to establish the causal relation between the alleged negligence and the injury.

Error from District Court, Osage County; Jesse J. Worten, Judge.

Action by E. Brumley against George Little Star, Charley Kirk, and Louis Drexil. Judgment for plaintiff against the defendant Star, from which he appeals. Reversed.

Walter L. Gray and Leahy, MacDonald & Files, for plaintiff in error.

Johnson & Stith, for defendant in error.

MASON, V. C. J.

¶1 The defendant in error was plaintiff and the plaintiff in error was defendant in the trial court, and, for convenience, they will be referred to herein as they there appeared. The plaintiff, Brumley, sued George Little Star, Charley Kirk, and Louis Drexil to recover $ 15,192, as damages for injuries alleged to have been received by reason of the negligence of the defendants in carelessly and recklessly driving a Cadillac automobile against and over the plaintiff.

¶2 Plaintiff's evidence discloses, substantially, the following facts:

Plaintiff testified that he was driving alone in his automobile along the road about three miles north of Fairfax, when he had tire trouble; that he drove to the right of the road and got out to repair the tire, which was on the side next to the traveled part of the road; that it was dark and passing cars had their lights lighted; that while so engaged, several cars passed him, including two trucks with trailers; that one car ran over him and broke both legs; that he was unable to describe said car or to tell how fast it was running.

¶3 Two witnesses, one of whom was employed by a garage in Fairfax, testified that they drove from Fairfax about three miles north of town to a point approximately where the plaintiff was injured. They made this trip to repair a car, the driver of which had telephoned in for help. They did not see the plaintiff or his car, neither did they find the car for which they were hunting. On their way back to town, they passed several cars, but paid little attention to them, as they were watching the side of the road for the car out of repair. They both testified that, at a point about one and one-half miles from where the plaintiff was injured, they passed one car which was driving approximately 50 miles per hour, and one of the witnesses testified that he recognized the defendant Louis Drexil in this car. Neither testified that the plaintiff in error, Star, was in the car.

¶4 Two other witnesses testified that they were driving into Fairfax on said night and passed a man fixing a tire on the side of the road about three miles north of said town; that they passed several cars between the point where the man was fixing his tire and Fairfax; that it was dark and the lights on the cars were lighted; that they passed one car which was going very fast and "holding to the middle of the road" and that said car nearly collided with their car in passing; that after they arrived in town they went to the Fairfax hospital; that later the plaintiff was brought in and they helped carry him into the hospital.

¶5 Another witness testified he was driving along the road and saw the plaintiff repairing his tire; that a short distance further down the road he met the defendants in a car; that the defendant Star was driving said car; that he did not hear of plaintiff's accident until a week later. The court sustained the demurrers to the evidence interposed by the defendants Drexil and Kirk, but overruled it as to the defendant Star. The defendant Star, as a witness on his behalf, denied that he was on said road at the time in question. Other evidence on behalf of the defendant was also introduced, which we deem unnecessary to set out herein.

¶6 The jury returned its verdict in favor of the plaintiff for $ 8,000, upon which the court rendered judgment. The defendant Star has duly perfected his appeal, and for reversal urges several assignments of error, the only one of which we deem it necessary to notice is that the court erred in overruling defendant's demurrer to the evidence. Although the evidence was conflicting, the finding of the jury in favor of the plaintiff necessarily implies a finding that the defendant was on said road at the time of the accident and that he was driving more than 35 miles per hour. In driving more than 35 miles per hour, the defendant was violating the penal statutes of this state and, therefore, negligence on his part at that time will be presumed, but there is no direct evidence that the defendant drove over the plaintiff, as alleged. Neither is there any direct evidence as to the rate of speed the automobile was traveling which ran over the plaintiff.

¶7 It is competent to prove negligence, as any other fact, by circumstantial evidence, but in such case the circumstances must be such as reasonably lead up to and establish the fact sought to be proved. M., K. & T. Ry. Co. v. Greenwood (Tex. Civ. App.) 89 S.W. 810. It is elementary law that an inference of fact cannot be based on another inference: that a presumption cannot be based on another presumption. No inference of fact or of law is reliable that is drawn from...