This is an action by Emma Zopfi, a minor, suing by next friend, against the Postal Telegraph Cable Company, for personal injuries sustained through the alleged negligence of the company. She obtained a verdict and judgment thereon for $4,000, and this writ of error is prosecuted by the telegraph company fo£ the purpose of reviewing that judgment.
The fourth, fifth, and sixth assignments of error relate to the refusal of the circuit court to grant a new trial, and need not be further considered. The granting or refusal of a new trial is not subject to exception, and cannot be assigned as error. Schuchardt v. Allens, 1 Wall. 370; Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458; Van Stone v. Manufacturing Co., 142 U. S. 128, 12 Sup. Ct. 181; Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26.
The third error assigned is that “there was no evidence to sustain the verdict, and therefore the verdict should be set aside.” The question sought to be presented by this assignment need not be considered in the form thus presented, for the reason that, at the close of all the evidence, the plaintiff in error moved the court to instruct the jury to return a verdict for the defendant. This motion was overruled, and is made the subject of the first and second assignments of error. It is evident that, if either of the assignments based upon the refusal of the court to instruct for the defendant below is well taken, it will be unnecessary to determine how far plaintiff in error could be relieved from a judgment based on a verdict unsupported by any evidence whatever, where no motion had been made at the conclusion of the evidence for a peremptory instruction. We shall therefore consider the single question as to whether or not the court erred in submitting the case to the jury, and refusing an instruction to find for the plaintiff in error.
Caspar Zopfi, the father of Emma Zopfi, the defendant in error,
At the conclusion of all the evidence, the court refused a request to instruct for the plaintiff in error. After telling the jury that, if the presence of the pole in no way caused or contributed to cause the plaintiff’s fall, their verdict should be for the company, although they might think that her injury from the fall was aggravated by falling on the pole, the court instructed the jury as follows:
“If the pole caused the fall, or concurred as an operative or producing cause with something else, and proximately produced this injury, the defendant would be liable. You .will look to all the testimony, and to the entire situation there, the condition of the weather, and everything else making the complete transaction, and determine what did cause her fall.” “If you are satisfied by a reasonable preponderance of the evidence that the pole did cause her fall, or that it occurred with anything else to produce it, the defendant would be liable.”
This charge was in accordance with the opinion of this court upon a former appeal in this cause, where a new trial was awarded, because we were of opinion that the court had erred in instructing the jury to find for the present plaintiff in error. Zopfi v. Telegraph Co., 22 U. S. App. 136-143, 9 C. C. A. 308, and 60 Fed. 987.
It is now argued that, upon the facts in evidence, the only legitimate inference to be drawn is that the defendant in error fell alone because she slipped upon the wet platform; that “the wet, slippery platform was the sole cause of her fall; and for that the plaintiff in error is in no wise responsible.” It is insisted that this was so plainly and conclusively the only legitimate inference to be drawn from the most favorable view of the evidence which can be taken for the defendant in error that the court should have instructed the jury to find for the plaintiff in error. In support of this position, it has been argued that a conclusion that the pole either caused, or, in co-operation with the wet platform, contributed to cause, her fall, can be reached only by “piling one inference upon another,” and that a presumption must be based upon a fact, and not upon an inference or upon another presumption. For this, counsel cite Lawson, Pres. Ev. p. 555; Manning v. Insurance Co., 100 U. S. 698; Douglass v. Mitchell’s Ex’r, 35 Pa. St. 440; Pennington’s Ex’r v. Yell, 11 Ark. 212; Lay v. Huddleston, 1 Heisk. 172.
Counsel suggest in support of this argument that the steps to be taken in reaching a conclusion that the pole contributed to Miss Zopfi’s fall are these:
“(1) Emma Zopfi fell because sbe slipped. (2) She slipped because she must have taken an awkward, dangerous step. (31 The step must have been awkward and dangerous, because it had to be so very high and lodg. (4) It must have been so high and long because of the presence of the pole. (5) She would not have been obliged to take such a step if this pole had not been where it was. In no other way [counsel continue] can liability be fixed upon this company upon the facts proven, otherwise than by piling inferences upon*613 inferences, by giving remote Inferences the probative weight of immediate inferences. This cannot be done, because such inferences are not evidence, under the established rule of law.”
We cannot concur in this reasoning. Home of the steps suggested are hut duplications; others are not presumptions or inferences from inferences, but inferences from facts; and others involve statements of fact, and are not inferences from facts at all. In a chain of reasoning, we may have many inferences which unitedly lead to one end or conclusion. Yet it does not follow that any one presumption oy inference was based upon another presumption or inference. Sfeither does it follow that, because a conclusion is reached as a result of many facts and many independent inferences from proven facts, therefore one inference has been obnoxiously piled upon another. This case? presented for the consideration of the court and jury a. group qf facts and circumstances. That Emma Zopfi had not slipped or tripped on the obnoxious pole was one of the conceded facts of the case. We are asked to infer from this fact that the presence of the obstructive pole in the passway in no way contributed to cause her fall, and to ascribe her misfortune sojely to the wet platform. This is to ignore the opposing theory, based upon the entire situation, which is that the step she was required to take was unusually long and high for a 13 year old girl, and may have resulted in a loss of balance as her foot touched the platform, and Iter consequent slip and fall. That a step fully 33 inches long, and high enough to step over the pole which lay between the stone and the platform, was an unusual and dangerous step for such a girl, is something more than either a presumption or an inference. Thai: it was both unusual and awkward is a fact of which either court or jury may take notice, as within the common knowledge of mankind. That the platform was wet, and therefore slippery, is another established fact; and that her foot was on the platform when she slipped and fell is another. That the wetness of the platform was the sole cause of her fall is the inference plaintiff in error draws, and would have the court so conclusively infer as to leave nothing for the jury to decide. That tin» wetness of the platform contributed to her loss of balance, her slip and fall, is probable. That it was the sole, efficient cause of her slipping is clearly not the only inference which reasonable men might draw from a consideration of all the facts of the case. To analyze into its possible elements a conclusion that her long and high step over the intruding pole contributed to her slipping and fall as she landed on the platfoym may hi" a complicated process, and many men might not satisfactorily state the steps to such conclusion, and might, in the estimation of an acute dialectician, be found guilty of obnoxiously drawing one inference from another. Still, the fact remains that the facts and circumstances were- such that either of two inferences might be made,— one that the wet platfoym was the sole cause of her fall; the other, that the pole proximately and efficiently contributed, in co-operation with (he wet platform, to her fall. If the jury should he of opinion from all the facts that but for the pole she would probably nor. have fallen, then, though the pole was not the causa causans, it would be
The facts now before us are not in essentials different from those presented on the former appeal. 9 C. C. A. 308, 60 Fed. 987. The case is clearly governed by tbe opinion tben announced, and the judgment is therefore affirmed.