*1 811 HILL, Adm’r Hazel E. J. C. MAXWELL et al 5-5044 9 2d
Opinion delivered December Wheatley, appellant. Deacon, Barrett, Smith & for Seegars, Howard, B.W. Jack Appellant, Justice. Admin- .Hill, J. Conley C Byrd, Jimmy Bay deceased, Hill, istrator the estate of wrongful brings appeal from directed verdict E. Thomas and Hazel in favor death action evi- there was sufficient At issue is whether Maxwell. negligence go dence operation automobile. Jimmy Bay Hill had The record shows intoxi- some consumed where to the Cotton Club 12:00 on foot Cotton Club cants. He left City Marshal of He was A.M. 12:30 along Bay, east walking his home at north toward occupants and the Highway The Marshal seeing difficulty Hill who in the ear had he was pace. Hill, saw last time at a normal *2 Bay about one fourth south of the Ditch mile Little Bridge.
The Maxwells had been the Cotton Club. also to They left between 1:20 and 1:25 A.M. Mrs. Max- with driving. says way well Mr. home they meeting Bridge; were a car on Little the they they lights had their on and that were dim; while bridge they on struck a man that he had the pickup until struck him. The occurrence truck the reported identi- later the the man was authorities and Jimmy Bay Hill. fied as investigating Max-
The officer testified thought him hit someone as that she she well told glimpse bridge only e., came across the had a she —i. object she struck. physical body Hill’s was found The facts show that way highway about half the east on side just highway and the of the ditch, bottom guard rail. north and behind immediately commencing north of skid marks were right curving off to the 29 feet right feet marks were skid shoulder. pickup lights edge pavement. on Both of east headlight bright on but truck burned light out, right parking broken on dim. The burned headlight cocked right and the the hood was dented up. appellees make action the trial court’s
To following argument: (a) totally appellant failed to show short, “In traveled vehicular was on the That decedent enough long highway striking in- him was and that their see keep proper by look- ferentially failure caused (b) That a failure out; decedent’s out was the cause of the decedent was that death. All that was shown appellees’ by truck at a time was killed highway being wa,s traveled, argued by well be por- walking along the decedent could tion con- traveled vehicles for theory Certainly, siderable distance. this was trial court and continues to appellant’s theory here. is a while this However, plausible theory, fact to come a trier of is not free upon an can be based unless such conclusion reasonably *3 from the drawn can inference which possible enough there is that are evidence. not upon went time when decedent as to answers highway . . .” portion . of main traveled argue: place appellees At another occu- it was “Thus, when was shown that decedent highway pying traversed presumption by appellees, had he that any highway occupied for said so aught previously. For of time stepped he shows, split Certain- he was a
vehicle second before keep proper a ly, do so, if failure he did his proximate cause of not have been out could stop the impossible to would have demise as it striking him.” before vehicle is evidence the record here there As view we Bay the Little which find or infer that traffic Bridge lane constructed for two Ditch direction); (one that in either lane for traffic commonly seen protected by guard as rails such necessary along highways it that was State; proceeded Jimmy he Bay if Hill to cross place north to his home from the he last seen; that in proceeding along doing so in a he nor- City mal manner; that since Marshal seen Hill walking along while he was the shoulder of the highway, appellees should have seen him; and that the bridge crossing struck Hill while he doing
.and
that in so
did
see
him before'
he was struck. Under somewhat similar facts we
held
Yocum v.
(1953),
On the authorities, Pros causation, element (3d 1964), point ser, Torts 41§ ed. the burden proof plaintiff and that sustain proof of causation more than con jecture. necessary However it plaintiff is not negative entirely possibility the defendant’s enough conduct was not a plaintiff cause. It is that the introduce evidence from which reasonable men con clude that it is more caused event was by the defendant than that was not. another Stated way, required every proof it is that the eliminate *4 possible plaintiff re cause other than the one on which only any, fairly arise such lies, causes, but other if as Reading (3d from the Williams Co. Cir. evidence. See v. 1949) Admittedly stranger F. 2d than truth is possible fiction and it stum is that decedent have jumped fallen bled, or to see but a has failed who
Maxwell motorist vehicle, in it with his vehicle what others saw he struck until fairly poor position argue indicates stumbling falling collision. court stated,
For the hold that trial reasons we appellant. against directing a erred in verdict Eeversed and remanded. JJ., dissent. Fogleman,
Brown John A. dissenting. agree Justice, I Fogleman, that, when light considered in evidence is most every favorable to reasonable inference question in favor, resolved there was a of fact as alleged negligence to the I think the Still judge properly trial directed a verdict. considering
In
this
mind
matter, we
pedestrians
as well as motorists
entitled
use
are
public highways
regard
and each must
act with
presence
Yocum
Holmes,
Ark.
other.
Line,
Truck
251,
535;
258 S.
Haralson v. Jones
223 Ark.
There facts not stated in pertinent I I take which think are view pickup headlights truck matter. The on Maxwell meeting a vehicle. The were dimmed it was because damage pickup ex- was on the evidence of truck right right very head- extreme treme light. close to the front, There to indicate right-hand got closer to the ever at pavement. This highway than feet from the curved, skidmarks the end the skidmarks. Since cen- nearer somewhat then Maxwell vehicle right-hand side from the and farther ter roadway of the main-traveled prior drizzling rain bridge. Hill time at conditions and weather incident to this misty misty rain. or a as were described was struck reasonably deduced could Even if Bridge dressed the Little Hill *5 aof clothing driver the him that rendered visible this would lighted properly struck, when vehicle he jury. to a the issues to submit not sufficient have been tending show have been evidence must also proper lookout driver to failure of that required or the lack lighting of equipment constituted proximate cause of the decedent’s Appellees argue that there no to indi- cate that decedent on the main-trav- portion bridge eled of the nothing when struck and indicate that occupying portion he was high- that of the way for a sufficient of time he so that could have by Appellees observed say the driver. that, under stepped evidence here, the decedent have path split turned into of the vehicle a sec- ond Appellant before he was struck. states that cross- ing bridge necessary it was for Mr. Hill to walk on portion by thereof utilized motor vehicles. On the appellees emphasize other hand, no there is that evi- completely dence to this effect and record is any place silent as to whether there was other bridge on which the walk. decedent could though appellees' argue
Even lack of evidence proximate ap- verdict, causé in pellant argued point point has not and has failed any evidence which to deter- would enable mine cause without resort to conjecture. pointed and out, As stepped showing onto decedent by traffic traversed vehicular path in the or which was positions appellees’ relative nor to show the vehicle appellees’ He was that time. truck at decedent impact appellee by until the instant either he position where in a shown vehicle. driver of could have been seen in- argued could have walking on the either that ferred path a time such vehicular traffic at in the time to him in that Hazel Maxwell should have seen stepped striking avoid or that he keeping suddenly her so her
817 out not have his would avoided aYet guide making would have no in whatever to it evidence speculation its and and determination would be left to upon conjecture only. evi cannot based An inference speculative too or which dence uncertain and conjecture indulgence merely possibility. a raises or supply Infer fact. a nonexistent of inferences will not a of facts established to verdict ences arise speculative, purely by evidence. Other inferences conjecture. guesswork or under the allowable to draw inference another rules of evidence one or upon presumption indulge presumption to establish to carry the deduction a fact. To would do so conjecture. speculation Ark v. realm of and Glidewell 4. Co., hola 212 208 2d Sand & Ark. S. W. 838, Gravel meeting case, In this the Maxwell vehicle an misty rainy in other vehicle weather conditions. This situation have been as obvious should pedestrian, Hill was Mrs. As a Hill as it Maxwell. safety duty ordinary for his own to exercise care anticipate presence and and to look out Transp. v. vehicles. Missouri Co. movements of Pacific George, 37; Lion Re 1110, 133 2d Oil 198 Ark. S. W. fining Smith, Co. 199 Ark. 2d Pate 397, 133 v. W. 895; S. Fears, 954; v. 223 Ark. 265 2d Williamson v. 365, S. W. Garrigus, 8. 705, 228 310 W. While Ark. S. 2d his burden on to show to of negligence, was incumbent free from it tending fer such to show conjecture would not be equally question resolve Railway Springs Co., possibilities. Street Turner v. Hot have offered He 894, 75 189 Ark. S. W. tending in such that the show deceased presence position could have position in Maxwell’s driver discovered question striking him. The her to have avoided time for with the he came contact as to how conjecture, aas matter of be left could just as reasonable to say that Hill’s own negligence may Scullen, Porter v. caused his death. 129 Ark. Missouri Pac. R. Co. 17; Ross, Ark. *7 877, 109 S. W. was no evidence simply to take the and con- issue out of realm of speculation jecture, so the trial verdict. directed the court correctly
In effect, has the burden majority placed acts cause of their were proving the decedent’s death This unique law and procedure. our
I would affirm judgment. J., joins in this dissent. Brown, PANELING, TOWNSEND Inc. et al Curley BUTLER 5-5067 2dW.
Opinion December delivered
[Rehearing January 26, denied 1970.]