184 Mich. 330 | Mich. | 1915
(after stating the facts). A careful reading of the entire record in this case convinces us that the learned circuit judge reached a proper conclusion. Considering the testimony introduced on behalf of plaintiff for the purpose of establishing the fact that the only lethal current abroad in the city of Ypsilanti at the moment of the death of plaintiff’s intestate was that upon the trolley wire of the defendant company, we find that the record fails to disclose that the high-tension wire which carried about 20,000 volts was devoid of current at that time. We further find that the engineer of the city lighting plant was unable to determine at what time the power of that plant was shut off. He fixed it at somewhere
It is argued, on behalf of plaintiff, from the fact that the lights were extinguished at the time of the injury to plaintiff’s intestate, that the municipal current must have been absent from those wires. There was testimony in the case, however, given by the plaintiff’s witnesses that those wires might have carried current even though the lamps were unlighted. Indeed, if plaintiff’s theory of the accident is correct, those wires must have carried the current from the defendant’s trolley wire to the point where the accident occurred. The record likewise fails to show affirmatively that defendant’s trolley wire actually came in contact with any other wire or wires at the point where it fell on Washington street. The witness Chadwick, speaking of defendant's trolley wire, on direct examination testified:
“Q. Did you observe flames when wires struck wires ?
“A. Yes.
“Q. Did you observe that when a wire struck the rails?
“A. Yes; when wires struck rails it would flame up.
“Q. Did you see any wires burned in two?
“A. No; it was dark.”
On cross-examination the same witness testified:
“Q. You don't know, of course, whether the wires came in contact with each other or not; all you know is that the wires fell down?
“A. When they crossed there would be a ball of fire strike up, and they would separate, and out it would go.
“Q. You don’t know whether the wires crossed one another or not?
“A. I couldn’t tell that. I know they were hitting
“Q. The city has more wires than one on that street?
“A. I couldn’t say; I don’t know.
“Q. You don’t know what wires were in contact?
“A. No; I do not.”
It would serve no purpose of value to the profession to set out at large the testimony contained in the record upon this point. It is sufficient to say that, when given its greatest probative force, it falls short of showing affirmatively either one of two essentials: (1) That the defendant’s current was the only deadly one upon any of the wires within the city of Ypsilanti at the time of the accident; or (2) that defendant’s trolley wire actually came in contact with the city wire or any intermediate wire communicating with the city wire which carried the current a half mile distant to the corner of Spring and Bell streets, there to be communicated again to a telephone wire, which was down; thence to the plaintiff’s intestate. The most that can be said of the testimony introduced on behalf of plaintiff is that it is possible that all these contingencies occurred. Under such circumstances, it is the duty of the court to direct a verdict for the defendant.
It is elementary that the burden is upon the plaintiff to establish by competent evidence not only the negligence of the defendant, but also to establish a direct connection between such negligence and the injury. The plaintiff does not sustain such burden by showing that the injury may have resulted from the defendant’s acts, but he must at least show that that fact follows as a reasonable inference from the basic facts and circumstances. Whenever it is necessary to aid such proven basic facts and circumstances by conjecture, plaintiff must be held to have failed in his proof. Byerly v. Light, Power & Ice Co., 130 Mo.
In this view of the case it becomes unnecessary to consider the evidence of defendant’s negligence. It may be pointed out that nowhere in the record is it shown, even approximately, at what time defendant’s trolley wire fell. It is therefore impossible to determine the lapse of time between the falling of .the wire and the receipt of the injury by plaintiff’s intestate, an element necessary upon which to base defendant’s negligence upon the ground that it had constructive notice of the faulty and dangerous condition of its equipment. It is not shown that defendant had any actual notice of the condition prior to the happening of the accident.
The judgment is affirmed.