Yazoo M.V.R. Co. v. Lamensdorf , 180 Miss. 426 ( 1937 )

The case for appellees is built upon, and must stand, if at all, upon the testimony of the witness Brock that the deceased was stalled upon the railroad track, or partly thereon, for a period of 45 seconds, within which time appellant could easily have stopped its train before reaching the crossing. That estimate by Brock cannot be reconciled with the surrounding facts as shown by all the other witnesses; and weighing it in the scales of all ordinary human experience and observation, as it is our duty to do, it must be pronounced as incredible as a reasonable probability. It is possible, as almost anything is possible, that the length of time did intervene as Brock estimates, but we repeat that as a probability it is incredible; and we suppose it is not now necessary to more than briefly refer to what we have so often heretofore said, to-wit, that to present a possibility, rather than a believable probability, is not a sufficient basis for a verdict and judgment. Berryhill v. Nichols, 171 Miss. 769, 773,158 So. 470; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 522,160 So. 277; New Orleans, etc., R. Co. v. Holsomback, 168 Miss. 493, 495, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 153,152 So. 842.

The scintilla of evidence rule has been discarded in nearly all jurisdictions, and is not recognized in this state; but verdicts must be based upon substantial evidence and that evidence must be reasonably believable. Whatever a jury here or there might chance to believe, we must require that the evidence upon which they act must be within state-wide legal standards, and one of these, as said, is that the evidence must be substantial and must be reasonably believable. Common experience and observation among all sensible men, who are impartial and without interest upon the issue, can lead to but one reasonable or substantial conclusion in respect to estimates of short periods of time, especially when that estimate, formed in a period of excitement, is in terms of seconds. So it is that all must agree with what the law books say on that subject: "Estimates of the duration of short periods of time into which such experience is crowded are notoriously inexact and are apt to be excessive, especially if the mind was in a state of anxiety or expectation, and a witness who assumes to measure time with accuracy under such circumstances discredits himself." 23 C.J., p. 37, and cases there cited. See, also, 2 Moore on Facts, p. 992, et seq. In this case, for instance, Brock estimated the time of the train from the bridge to the crossing at 15 seconds, while his wife said it was 3 seconds, and neither of them had it right.

If we were to accept the estimate of 45 seconds by Brock as the duration of time that deceased was stalled on the track and discard all the other evidence, and allow this single estimate as sufficient in dependable substance to support a verdict, it would be to say that we will accept as substantially and controllingly dependable that which is declared by the authorities to be notoriously inexact and unreliable, and, moreover, would convict this train crew as bent upon homicide, and the deceased upon suicide, or at least that he was wholly indifferent to the most compelling motive or instinct which, under all circumstances and in every eventuality, incites men to action in their own behalf, namely, the instinct of self-preservation. Is it reasonably credible or believable that for 45 seconds the deceased would have sat in his stalled car, stalled on the railroad track, with an oncoming train in full view, with its whistle sounding alarm and its bell ringing, and with every other person aware of its approach, that he simply remained there until killed, when within much less time than 45 seconds he could have stepped out of his car to a place of safety only a few feet away? Appellees attempt to answer this question by saying that the deceased was frozen to his seat by fright, but in this they take resort to nothing but conjecture, there not being a word of fact in the evidence which would give probative support to any such contention.

The verdict is not supported by substantially dependable evidence, and we adhere to our original ruling so holding.

Suggestion of error overruled.