45 C.J. 1148, 1267. Only reasonable care to maintain and keep in repair its equipment is required. 28 C.J. 590. The facts from which an inference may be drawn must be proved and cannot themselves be inferred. 45 C.J. 1265, 1272. Wright v. Conway, (Wyo.) 242 P. 1107; Martel v. Hall Oil Co., 36 Wyo. 166; Rosson v. Hylton, (Wyo.) 22 P.2d 195; Tisthammer v. Union Pac. Ry. Co., 41 Wyo. 382; McFarland v. Ref. Co., 60 L.Ed. 899; Western Ry. Co. v. Henderson, 73 L.Ed. 884. The rule against disturbing verdicts given on conflicting evidence will not apply where the verdict is clearly erroneous or against the great weight of evidence. O'Brien v. Chinquy, 2 Wyo. 56; Williams v. Yocum, 37 Wyo. 432; 2 R.C.L. 197; St. Mary's Gas Co. v. Brodbeck, (Ohio) 151 N.E. 323; Woodburn v. Power Co., (Ky.) 174 S.W. 730; Union Investment Company v. Gas. Company, (Cal.)
One point of entry having been proven or admitted, inconsistent testimony relating to defects in rail fences at some other point was inadmissible. Tisthammer v. U.P.R.R. Co., 41 Wyo. 382. Second, the burden of proof rested upon the party who had the affirmative as shown by the pleadings. 22 C.J. 14, pp. 68, 69; also 22 C.J. 21, p. 76. Plaintiff's petition expressly alleged that defendant did construct a sufficient fence, but permitted it to deteriorate into a state of ill repair.
It must be recognized that a logically connected train of circumstances may be as cogent to prove the existence of a fact as any direct evidence and, indeed, may at times outweigh opposing direct testimony. Tisthammer v. Union Pac. R. Co., 41 Wyo. 382, 286 P. 377 (1930). See Claus v. Farmers Stockgrowers State Bank, 51 Wyo. 45, 63 P.2d 781 (1936).
The fact that such evidence is circumstantial is immaterial. Logically connected circumstances may be as cogent proof of existence of fact as direct evidence and may even outweigh opposing direct evidence. Tisthammer v. Union Pacific Railroad Co., 41 Wyo. 382, 392, 286 P. 377, 380 (1930). Circumstantial evidence, with proper inferences to be drawn therefrom, may be sufficient to establish fraud.
"* * * A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence, and may outweigh opposing direct testimony; and the concurrence of well authenticated circumstances has been said to be stronger evidence than positive testimony unconfirmed by circumstances." The authorities cited thereunder, including Tisthammer v. Union Pac. R. Co., 41 Wyo. 382, 392, 286 P. 377, 380, bear out the statement. However, the fact that plaintiff may have reduced his speed to between 30 and 35 miles an hour after passing defendant's car must not be overlooked.
To constitute a latent defect the defect must be hidden from the knowledge as well as from the sight and must be one which could not be discovered by the exercise of ordinary and reasonable care. Smith v. Morrow, 230 Ill. App.? 382. A fact cannot be established by circumstances which are perfectly consistent with direct, uncontradicted, and unimpeached testimony that the fact does not exist. Tisthammer v. Union Pacific Railroad Company, 286 P. 377, 41 Wyo. 382. The findings of the jury must also correspond to, and be sustained by the evidence. An answer or finding contrary to the evidence may properly be set aside, and a finding by the jury on an issue not presented or supported by the evidence may be disregarded. 89 C.J.S. 318. While it is well settled that the verdict of a jury, or the conclusion of the court sitting in lieu thereof, will not be disturbed as to findings of fact upon controverted questions if there is sufficient competent evidence to support them, it is likewise equally true that where there is no conflict of testimony, either circumstantial or direct, as to material facts, the court or jury is not at liberty to disregard the evidence adduced and return findings wholly unsupported thereby.
When the evidence to a fact is positive and not disputed, it ought to be taken as an established fact and the charge of the court should proceed upon this basis. Kahn v. Traders Ins. Co., 4 Wyo. 419; Boswell v. First National Bank, 16 Wyo. 161; Calkins v. Wyo., 25 Wyo. 409; Tisthammer v. U.P.R.R. Co., 41 Wyo. 382. Pertinent illustrations of this doctrine are found in the following cases. R.R. Co. v. Chamberlain, 288 U.S. 333; Pollock v. Pollock, 71 N.Y. 137; Laidlow v. Sage, (N.Y.) 52 N.E. 679; Parkinson v. Kortum, (Iowa) 127 N.W. 208. The relation of proximate cause and effect is fully discussed in 17 C.J. 741, 750.
12 R.C.L. 908, 25 A.L.R. 272. Rules concerning sufficiency of evidence are set forth in 45 C.J. 1265, 1272. An inference cannot be based on another inference. Wright v. Conway, 34 Wyo. 1, 242 P. 1107; Martel v. Hall Oil Co., (Wyo.) 253 P. 862; Rosson v. Hylton, (Wyo.) 22 P.2d 195; Tisthammer v. Union Pac. Ry. Co., (Wyo.) 286 P. 377; McFarland v. Ref. Co., 60 L.Ed. 899; Ry. Company v. Henderson, 73 L.Ed. 884; 2 R.C.L. 197. The general rules have been applied in St. Marys Gas Co. v. Brodbeck, (Ohio) 151 N.E. 323; Woodburn v. Union Light Power Co., (Ky.) 174 S.W. 730; Union Investment Co. v. Gas Company, (Cal.) 141 P. 807; National Roofing Co. v. Telephone Co., (N.J.) 137 A. 409, and in numerous other cases cited in our brief.
See Miller v. Uvaide, etc., Co. (1909), 134 A.D. 212, 118 N.Y.S. 885; Blid v. Chicago, etc., R. Co. (1911) 89 Neb. 689, 131 N.W. 1027; Mooney v. Mooney (1912) 244 Mo. 372, 148 S.W. 896; Anderson v. Chicago, R.I. P.R. Co. (1926) 243 Ill. App. 337; Emory University v. Bliss (1926) 35 Ga. App. 752, 134 S.E. 637; Tisthammer v. Union Pac. R. Co. (1930) 41 Wyo. 382, 286 P. 377; Florida East Coast R. Co. v. Acheson (1931) 102 Fla. 15, 135 So. 551, 137 So. 695, 140 So. 467; Gregory v. Sorenson (1932) 214 Iowa 1374, 242 N.W. 91; Sullivan v. Mountain States Power Co. (1932) 139 Or. 282, 9 P.2d 1038. That is far from being the case here.
As we stated in Alan Alan, Inc. v. Gulfstream Car Wash, Inc., 385 So.2d 121 (Fla. 3d DCA 1980): It is a well-settled principle that a fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819 (1933); Kuykendall v. United Gas Pipe Line Co., 208 F.2d 921 (5th Cir. 1953); Curtis v. Hunt, 158 Ala. 78, 48 So. 598 (1909); Neill v. Hill, 32 Ga. App. 381, 123 S.E. 30 (1924); Bulatao v. Kauai Motors, Ltd., 49 Haw. 1, 406 P.2d 887 (1965); Louisville R. Co. v. Potter, 175 Ky. 258, 194 S.W. 308 (1917); Mooney v. Mooney, 244 Mo. 372, 148 S.W. 896 (1912); Williams v. Ford, 233 S.C. 304, 104 S.E.2d 378 (1958); Cleveland Wrecking Co. v. Butler, 57 Tenn. App. 570, 421 S.W.2d 380 (1967); Esso Standard Oil Co. v. Stewart, 190 Va. 949, 59 S.E.2d 67 (1950); Tisthammer v.Union Pacific R. Co., 41 Wyo. 382, 286 P. 377 (1930). See 23 C.J. Evidence § 1792, n. 54 (1921); 32A C.J.S. Evidence § 1039, n. 26 (1964); 30 Am.Jur.2d Evidence § 1091, n. 20 (1967).