Opinion
No. 6976.
May 1, 1951.
APPEAL FROM THE HOWELL COUNTY CIRCUIT COURT, HOWELL COUNTY, GORDON DORRIS, J.
J. Weston Miller, Miller Fairman, all of Springfield, A. W. Landis, and Robert L. Hyder, of West Plains, for appellant.
Percy Gullic, of Alton, Green Green, Will H. D. Green, and H. D. Green, all of West Plains, for respondents.
Plaintiffs below are respondents here and defendant below is appellant here.
Plaintiffs were the father and mother of Charles Freddy Joplin, a son, little more than four years of age, who met instant death in a collision with a truck of defendant in the city of Koshkonong, Missouri, on August 8, 1949, by being struck and run over and killed. The truck of defendant was operated by one Fate Swan, Jr. The case was tried in Howell County, on June 20, 1950.
Plaintiffs' petition was based on several grounds of alleged negligence; but the case was submitted to the jury solely on the humanitarian doctrine, and the other grounds of alleged negligence need not be further noticed. Nine of the jury returned a verdict for plaintiffs in the sum of $5,660.00. Motion for new trial was overruled and the case is here on the appeal of defendant.
As the driver of the truck did not testify, there were no eyewitnesses to the death of plaintiffs' child. Defendant offered no testimony whatever and contended itself with the testimony offered by plaintiffs, on which defendant filed a motion for a directed verdict, and stood upon it.
The accident occurred in broad daylight on a dry highway, which had been black topped and was straight for several hundred feet before and after the place where the accident occurred. The deceased had been playing with a son of a Mrs. Byrom, who lived immediately across the road from plaintiffs' home. She heard some sort of a squeaking noise, like that made by an automobile in turning suddenly. Thinking of the safety of her own child, she ran around her house and saw what had happened. Outside of the driver of defendant's truck, she was more nearly an eyewitness to the tragedy than anyone else who did testify.
The driver of defendant's truck was proceeding northward along the straight and dry highway in broad daylight, with an average load and with brakes and horn in good condition. the latter facts were testified to by the vice-president of defendant corporation, called by plaintiffs, and his testimony was the only evidence on the subject of the truck's condition.
For some reason, which is not at all clear under the evidence, deceased was struck by a corner of the truck and died instantly under its wheels. Whether deceased dashed out of the Byrom home or was in the road, as the truck moved northward, is not shown. The truck swerved to the right for a distance of about a foot and blood on the highway, evidently of deceased, was found about eight feet from the point where the truck began to swerve to the right. Whether the driver of the truck first saw deceased, when he started to swerve the truck, does not appear, although the circumstances seem so to suggest. The truck was stopped about 46 feet to the north of the point where deceased was apparently struck by it.
Plaintiffs argue that the highway was straight and mowed down on each side, and the driver of the truck should have seen the deceased in a position of peril, in time to have averted his death by the proper use of the means at his command, and thus probably could have averted the accident. Plaintiffs also argue that the distance the truck ran after the accident tends to show that it was being operated at a high speed.
To recover on this theory, the jury must have assumed that defendant's driver failed to sound his horn, operated the truck at high speed, failed to stop or to swerve or slow down its assumed speed, in time to have saved the life of plaintiffs' son. We have diligently studied the evidence in the transcript and are unable to come to any other conclusion than that recovery by plaintiffs depended on building one inference of negligence upon another and that there was no evidence whatever of any negligence on the part of the driver of the truck, although the highway was straight and dry and the vision of the driver to the right and to the left was unobstructed, and the truck may have been moving rapidly.
There was not the slightest evidence to show where the deceased was immediately before he was struck by the truck. For all the evidence shows, deceased might have dashed onto the highway just as the truck was about to pass and he was not seen by the driver of the truck at all, until it was too late to avoid striking him. The fact that the truck veered to the right indicates to our minds only that the driver was doing all he could to avoid striking the deceased, when he saw him in danger.
The fact that the truck was stopped at 46 feet beyond the blood in the road, may have had some bearing on the speed at which the truck was being driven. But that does not tend to show that the deceased was where the driver of the truck could have seen him in time to avoid striking him.
The courts of this State have time and again held that actionable negligence can not be shown by piling one inference upon another. Negligence must be proven in every case, and is assumed in no case.
In Miller v. Wilson, 288 S.W. 997, 999, the St. Louis Court of Appeals, in an opinion by Bennick, then Commissioner, but now Judge, and unanimously concurred in by all the Commissioners and Judges of that Court, said: "We are clearly of the opinion that plaintiff failed to make a case under the humanitarian doctrine. When, as is the case here, the record is utterly devoid of evidence as to defendant's speed, the distance within which he could have stopped his automobile, or the relative positions of the two machines at the moment when defendant could first be charged with actual or constructive notice of plaintiff's perilous position and of the danger of a collision, no case is made for the application of the humanitarian rule." Citing many cases.
Among numerous cases plaintiffs cite is State ex rel. Mulcahy v. Hostetter et al., 346 Mo. 65, 139 S.W.2d 939, 941. This was an opinion by Judge Douglas, of Division One of the Supreme Court of Missouri. Judge Douglas there said: "The relator also claims that the respondents in arriving at their decision based inferences upon inferences in conflict with our decision in Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437. That case has been distinguished in the later case of Wills v. Berberich's Delivery Co., [345] Mo. [616], 134 S.W.2d 125, which holds that the rule against piling inferences is not a general rule applicable to all situations but is a rule of reason governing only when the proven facts and their reasonable implications furnish no basis for the establishment of the fact sought to be proved. Any number of inferences may be drawn in a given case so long as each has a factual foundation."
That case, and others like it, do not help plaintiffs at all, as plaintiffs' theories of negligence have no factual basis. Their theories are inferences at most. The speed of the truck, and especially the position of the deceased, just before the accident, are left entirely to guess and speculation. Outside of such guess and speculation, there is not the slightest evidence of any negligent act of defendant's driver.
Plaintiffs correctly argue that all evidence most favorable to plaintiffs must be taken to be true, and plaintiffs should be given the benefit of every favorable inference, which can reasonably and fairly be drawn from the evidence. But we are unable to find any fact in the evidence. All that can be said here is that plaintiffs' child came to its sudden and violent death by coming in contact with defendant's truck. The mere happening of the accident, terrible as it was, does not establish negligence on the part of the driver. The citation of many cases does not obviate the need of some evidence that defendant's driver was at fault. Plaintiffs must show by substantial evidence something more than that their child met its death by collision with the truck of defendant.
It results that the judgment of the trial court against defendant was improperly rendered, and that such judgment must be reversed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.