Western Travelers' Accident Association v. Holbrook

• Decision Date: 22 April 1903
• Parties: WESTERN TRAVELERS' ACCIDENT ASSOCIATION v. EDGAR H. HOLBROOK
• Court: Nebraska Supreme Court

94 N.W. 816

65 Neb. 475

WESTERN TRAVELERS' ACCIDENT ASSOCIATION v. EDGAR H. HOLBROOK

Supreme Court of Nebraska

April 22, 1903

AFFIRMED.

KIRKPATRICK C. HASTINGS and LOBINGIER, CC. concur.

OPINION

KIRKPATRICK, C.

This action was brought by Edgar Hodgson Holbrook, defendant in error, against the Western Travelers' Accident Association, plaintiff in error, in the district court for Douglas county. The case is here upon rehearing, the prior opinion being found on page 469, ante. We have reexamined the evidence, and will restate the facts, in connection with the discussion of the questions presented, so far as may be necessary.

In the prior opinion, it is said: "When it has been sufficiently established by circumstantial evidence that a person has suffered injury by reason of falling from a dangerous height, it will be presumed, in the absence of evidence to the contrary, that the fall was accidental." The accident for which recovery is sought in this case, is alleged to have occurred January 8th, 1898. According to the testimony of defendant in error, at 10 o'clock in the forenoon of that day he had an appointment on the fourth floor of the building No. 346, Broadway, New York. While waiting, he leaned against the balustrade surrounding the stairway, and, as he says, "in some manner lost my balance and fell over the balustrade to the steps below, sustaining fractures of both legs." The balustrade was about three feet high. Defendant in error leaned against it with one leg resting against it and the other resting on the floor. He had never been afflicted with vertigo, fits or dizziness, or any similar affliction. He was not conscious of any dizziness preceding the fall. He did not recollect his flight through the air, or any sensation presumably produced thereby. His first sensation after the remembrance of leaning against the balustrade was when a physician called to attend him applied stimulants to his nostrils. This was at the landing where he alleged he had fallen. There is no further testimony as to the manner in which the injury was sustained. There is likewise no testimony tending to explain the injuries upon any other hypothesis than that given by defendant in error. As we understand contention of plaintiff in error, it is that defendant in error must prove that he suffered the injuries complained of by accidentally falling over the balustrade of the New York Life Building, and that the evidence is insufficient to establish this allegation. This contention is based upon the following analysis of the proof: (1.) The fall from the balustrade to the steps beneath is proved by circumstantial evidence; hence, it is an inference. (2.) If plaintiff fell from the balustrade to the steps beneath, the fall was either accidental or it was not. There is no direct or positive proof that it was either. Therefore, to say that it was accidental is to base an inference of the accidental character of the fall in part upon the inference that there was a fall, thus contravening the rule that an inference or presumption can not be based upon an inference or presumption. Counsel say: "Should we grant that there are sufficient proved circumstances from which to infer that Holbrook fell over the balustrade, he is faced by the legal impossibility, as shown above, of using this inference as a basis upon which to rest the ultimate fact necessary to be proved,--that the fracture was caused by accidentally falling over the balustrade. He can arrive at this ultimate fact only by using this inference as one of the stepping stones." Under this state of the proof, counsel strenuously insist that defendant in error can not recover without contravening the rule referred to. This rule, we may freely concede, where applicable, is well grounded. The layman, in the ordinary course of human conduct, may safely, and even prudently, act upon a chain of inferences. But as suggested, courts are not guessers, and legal presumptions are required to be based upon proved facts. In our view, however, the reasoning of counsel in which it is sought to interpose this axiom as an insurmountable barrier to recovery is only apparent. The evidence set out, we think, proves a fall; and, although this fall is purely an inference from circumstances proved, it is nevertheless so certain that we do not believe that any court would hesitate to accept it as conclusive. Counsel suggest the absence of all proof as to the time intervening between 10 A. M. January 8, when defendant in error stood at the balustrade, and the time when he was found on the steps beneath, and also the absence of any person who saw him fall. The evidence, in brief, is that at the hour named, he stood at the balustrade--that being a fact cognizable to his own consciousness--and that the next succeeding impression upon his mind was a sense of intense pain, and the application of stimulants to his nostrils by a physician who was attempting to revive him, and a realization that he was on the stairs beneath. Assuming the truth of the facts actually testified to, the inference follows that he fell. This testimony convinces our minds; it convinced the mind of the trial court; and we believe that defendant in error himself believed that he fell, as he alleges. The experience of falling through a space of four stories, and living afterwards to tell of it, is so rare that we do not believe the probable workings of the human mind during the flight can be the subject of any safe or fairly accurate generalizations, and, consequently, are not prepared to say that defendant in error's testimony that he has no recollection of falling is inconsistent with the assumed fact that he fell, and we are strongly inclined to think that to so hold would be, indeed, harsh, and well calculated to make recovery upon accident insurance policies in many instances wholly impossible, when in truth the facts shown are sufficient to convince any sane man that there was an accident.

Was the fall thus proved accidental? We do not understand counsel to deny that it was, but they do certainly deny that the accidental character of the fall is proved by competent evidence. The logic of counsel seems to be: Conceding that the circumstances show a fall, they show that, and nothing more. To say that it was accidental, is to base an inference in part upon the inference of a fall. We think the fallacy is apparent. It was accidental or it was not. It is impossible to exclude the one predication without adopting the other. Adopting counsel's logic, we might say that we can not arrive at the ultimate fact that it was not accidental without using the inference of a fall as one of the stepping stones. Yet this inference is highly artificial, while the...