Law v. Louisville N.R. Co. , 179 Tenn. 687 ( 1943 )

When a dead body is found beside the railway track so broken and mangled as to be fairly convincing that the deceased was killed by a passing train, and particularly if the rails or ties show blood, or other remains of the body, I understand the rule to be that proof that the deceased had been seen walking along the roadbed before a train passed, at a point reasonably near where the body is found, is sufficient to constitute primafacie evidence, subject to rebuttal, that the deceased was an obstruction on the track within the liability provisions of our statute. In all our cases following this rule, so far as I am advised, this proof has been by direct evidence of eye witnesses.

The instant case is somewhat unique, in that reliance is upon circumstantial evidence only to prove that the deceased was upon the track ahead of the train when fatally injured.

The first question, therefore, I have considered is whether or not this rule should be applied when this essential fact is proven by circumstantial evidence only.

The general rule, applicable to both civil and criminal cases, is that any material fact may be established by either direct or circumstantial evidence. As said in 20 Am. Jur., p. 258, citing numerous decisions: "The competency of circumstantial evidence is not open to question, provided it is the best evidence which the nature of the case admits," and it is "sometimes as cogent and irresistible as direct and positive testimony." Proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to the "common experience of mankind." Webb v. State, 140 Tenn. 205, 203 S.W. 955, 15 A.L.R., 1034.

As well expressed in Watkins v. Prudential Ins. Co.,315 Pa. 497, 173 A., 644, 651, 95 A.L.R., 869, "any evidence, whether direct or circumstantial, that tends to prove the operative facts, is admissible. . . . Causes of action are always set forth affirmatively and if they are to prevail they must be supported either (1) by facts tending to prove directly the cause of action pleaded or (2) by legitimate inferences from circumstances which have met the tests of admissibility." In Greenleaf on Evidence (15 Ed.), sec. 13, this is said: "In civil cases it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove. . . . In both cases [civil and criminal] the verdict may well befounded on circumstances alone, and these often lead to a conclusion more satisfactory than direct evidence." (Italics supplied.) In Mars v. Philadelphia R.T. Co., 303 Pa. 80, 154 A., 290, 292, it was said that where "a fact is deducible as a reasonable inference from the facts and conditions directly proved, and it cannot justly be classed as a mere conjecture or surmise or guess."

In Com. v. Jefferies, 7 Allen (Mass.), 548, at page 563, 83 Am. Dec., 712, Chief Justice BIGELOW said: "The process of ascertaining one fact from the existence of another is essential to the investigation of truth, and prevails in courts of law as well as in the ordinary affairs of life," a like thought being thus expressed in other language by Wigmore, "The conclusions and tests of every day experience must constantly control the standards of legal logic." Wig. Ev., Volume 1, sec. 27, page 232.

But counsel for petitioner railroad urge that, if the proof may be supplied by circumstantial evidence, that evidence is subject to the limitation universally recognized in criminal cases, that the proven circumstances must exclude every other reasonable hypothesis than that of guilt. Counsel cite Meador v.Nashville, etc., Ry., 177 Tenn. 273, 279, 148 S.W.2d 371, the unreported case of Nashville, C. St. L. Ry. v. Tunnell, White Law (quoted from in the Meador case), and Nashville, etc.,Ry. v. Sutton, 21 Tenn. App. 31, 35, 46, 104 S.W.2d 834.

The opinion in the Meador case quotes with approval the following from Jones, The Law of Evidence (3 Ed.), sec. 899:

"A theory cannot be said to be established by circumstantial evidence either in a civil or a criminal case, unless the facts and circumstances shown are not only consistent with such theory, but absolutely inconsistent with any other rational theory." (177 Tenn. 273, 148 S.W.2d 374.)

Whether or not this is the law, is of special importance in the instant case, in view of the following statement in the opinion of the Court of Appeals:

"It is . . . true that the circumstances here do not exclude the possibility that the accident might have happened in some other way, and do not exclude every hypothesis other than that the boy was an obstruction on the track."

The learned writer of this opinion of the Court of Appeals, Presiding Judge FELTS, then says that this statement quoted from Jones is, "contrary to earlier and later decisions of the Supreme Court that it is sufficient in a civil case depending on circumstantial evidence, for the party having the burden of proof to make out the more probable hypothesis, and the evidence need not arise to that degree of certainty which will exclude every other reasonable conclusion."

He then refers to holdings of this Court in Knights ofPythias v. Steele, 107 Tenn. 1, 63 S.W. 1126; Ballinger v.Mutual Life Ins. Co., 167 Tenn. 367, 69 S.W.2d 1090;Bryan v. Aetna Life Ins. Co., 174 Tenn. 602,130 S.W.2d 85, and New York Life Ins. Co. v. Nashville Trust Co.,178 Tenn. 437, 159 S.W.2d 81, 86; also several Tenn. App. cases. This statement, directly in point, is quoted from the opinion in the Bryan case by Chief Justice GREEN [174 Tenn. 602, 130 S.W.2d 88]:

"The general rule is that it is sufficient, in a civil case depending on circumstantial evidence, for the party having the burden of proof to make out the more probable hypothesis and the evidence need not arise to that degree of certainty which will not exclude every other reasonable conclusion. 23 C.J. 49; Jones, Com. on Evidence (2 Ed.), Vol. 1, sec. 12."

And from New York Life Ins. Co. v. Nashville Trust Co.,supra [178 Tenn. 437, 159 S.W.2d 86], is quoted this approval of the rule that the decision may be arrived at by balancing the "probabilities" in a civil circumstantial evidence case:

"The evidence being circumstantial, were the jury justified in concluding that death of the insured prior to March 8, 1933, was a more probable hypothesis than his continued existence after said date? Can we say that the finding of the jury was based on conjecture rather than upon the balance of probabilities? Should we sustain the motion for a directed verdict? We think not."

Of course, these cases recognize that there must be a preponderance of the evidence, that the "probalities" must be greater, one way or the other, the circumstances in favor of one party must outweigh those in favor of the other, in order to justify a finding in favor of either. Where the inferences to be drawn are equally plausible in favor of both of two conflicting theories, no deduction in favor of either may be drawn.

Not only are these decisions of this Court contrary to the rule quoted in the Meador case from Jones Law of Evidence, but I find that of the six cases cited by this writer to sustain this text three are criminal cases, and none of the others support the statement in so far as it extends the limitation applicable in criminal cases to civil cases. However, an analysis of these cases is not necessary, since I find that the quoted statement was later repudiated by its author.

In his larger and more comprehensive and later work, Jones Commentaries on Evidence, Volume I, sec. 12, pp. 23, 24, cited by Chief Justice GREEN in his opinion in Bryan v. Aetna Ins. Co.,supra, he said:

"In civil cases, it suffices that the evidence, whether direct or circumstantial, creates a preponderance of the proof. In a civil case, circumstantial evidence need not exclude every reasonable conclusion other than that arrived at by the jury."

He then adds, "but . . . as the rule in criminal cases is sometimes stated, the circumstances proved must be susceptible of explanation upon no reasonable hypothesis consistent with the innocence of the accused."

A full note discussing certain language used in some cases concludes with the following:

"In a civil case to warrant recovery on circumstantial evidence, the evidence must `outweigh' other hypotheses than the one contended for in the sense that evidence sustaining the hypothesis contended for must preponderate as against the others, but it need not `exclude' them in the sense of conclusive demonstration of impossibility."

Also, in an annotation in 97 Am. St. Rep., at page 802, I find this:

"The rule of criminal law that where circumstantial evidence is submitted, the facts proven must be such as to preclude every other hypothesis but the guilt of the accused does not apply in civil cases, Rippey v. Miller, 46 N.C. 479, 62 Am. Dec., 177; and proof of circumstances warranting a given inference is sufficient in such cases.Albrecht v. C.C. Foster Lumber Co., 126 Ind. 318, 26 N.E. 157; Louisville, etc., R. Co. v. Balch, 122 Ind. 583, 23 N.E. 1142."

This, as has been seen, is, in substance, the holding of this Court in our cases above mentioned.

This being the law of evidence governing the instant case, I find little difficulty in concurring with the Court of Appeals that the proven circumstances decidedly favor the probability that the deceased was an obstruction on the track of the defendant railroad when he met his death as a result of coming in contact with its train. It is unnecessary to restate the facts fully set forth in the opinion of the Court of Appeals and that prepared by Mr. Justice PREWITT. However, I add this:

As I view it, the determinative question of fact is this: When this young man on his way home reached the point where his road ran under the railway bridge and thru this swollen creek, did he follow the road, or use the bridge? Is it not more probable, more reasonable, to conclude that he climbed the gravel pathway to the railway track and crossed on this bridge, than that he waded thru the creek and proceeded along this muddy road? If so, he was walking along the track near where his remains were found at about the time a train going south passed. The proof of this, though circumstantial, must be given the same effect as if there had been direct testimony that he was "seen upon the track before struck."

The opinion in the Meador case recognizes that our cases sustain recoveries where the deceased was "seen upon the track before struck." That opinion followed and quoted freely from Nashville, C. St. L. Ry. v. Sutton,21 Tenn. App. 31, 104 S.W.2d 834 (certiorari denied) andN.C. St. L. Ry. v. Tunnell, White Law (unreported). The point is stressed that in neither of these cases, nor in the Meador case, was there evidence that the deceased was on the railroad track before being struck. In the opinion in the Tunnell case, quoted with approval in the Meador case, it was said that, "in Knoxville, C., G. L. Railroad Co. v. Wyrick, 99 Tenn. 500, 42 S.W. 434, and similar cases, . . . the deceased persons were seen upon the track before struck, and upon the rule of presumption that they continued upon the track it was held that where it appeared that death had resulted from being struck by the train the plaintiffs had carried the burden of showing that their intestates appeared as obstructions. But this rule of presumption does not obtain in the instant case for the reasonthat there is no evidence that the deceased was seen upon the track, or anywhere near thereto." (Italics supplied.) While in the instant case there is no testimony that the deceased wasseen upon the track, there is circumstantial evidence of high probative value that he was "upon the track," which is the material fact. I find no conflict with the decision in the Meador case. As shown above, there was no evidence in that case, either direct or circumstantial, as there is in the case before us, that the deceased was on the railroad track at any time before he was struck. We disapprove only the expression above quoted, probably by inadvertence, from Jones on Evidence extending to civil cases the limitation which applies in criminal cases to circumstantial evidence.

Since there was competent and material evidence to support the theory of the plaintiff, I concur with Mr. Justice PREWITT and the Court of Appeals that the trial Judge erred in granting a directed verdict for the defendant.

The CHIEF JUSTICE and MR. JUSTICE PREWITT concur in the concurring opinion of MR. JUSTICE CHAMBLISS.