Spiro v. St. Louis Transit Co.

102 Mo. App. 250 | Mo. Ct. App. | 1903

GOODE, J.

(after stating the facts as above).— If we accept as true the testimony given for the defendant, no case was established by the plaintiff. The only tendency of that testimony was to prove the horse and wagon were driven from the south track across the north one so close to the approaching car as to render a collision unavoidable by any exertion the motorman could make. It is true the jury might have believed the wagon was crossing, instead of running along, the north track when the car struck it and have believed, too, that it was far enough ahead of the car when the danger of a collision first appeared, for the accident to have been averted by prompt measures on the part of the motorman. It is conceivable that, the wagon being on the north track, the driver heard the car when it was almost on him and suddenly steered the horse towards the north, so that the car struck the right side of the vehicle, whirling it and the horse around and throwing them on their left sides, headed to the east, as they lay the instant after the accident. That the horse could have struggled into that position afterwards is also credible. But all these theories of how the conceded effect might have been caused, receive no countenance from the evidence, but are excluded from consideration by positive testimony to the contrary. No inference that it was within the power of the motorman, by the most extreme efforts, to stop the car before reaching the wagon as it passed .over the north track, could be properly drawn from the testimony of the defendant’s witnesses; while the plaintiff’s witnesses adhered tenaciously to the story of a square rear-end collision as the wagon was running on the rails, with the result of immediately knocking it and the horse into a position the reverse of the one they were in the previous moment.

Besides, the negligence of which the plaintiff complains in the petition was running the car against his wagon while the latter proceeded along the rails.

Opposed to the suggested possibilities on which the plaintiff might have a ease, we encounter, therefore, two rules of practice: First, that the very act of negligence alleged must be proven, if a specified act is alleged. McCarty v. Hotel Co., 144 Mo. 397; Fuchs v. St. Louis, 167 Mo. 620. Second, mere surmises and conjectures, unsupported by any evidence, afford no valid ground for a verdict. Whatever inferences fair-minded men can rationally deduce from testimony, juries are at liberty to adopt as the basis of a decision; but not some speculation conceivably true, but which can as well be false for aught that is proven. Moore v. Railroad, 28 Mo. App. 622; Peck v. Railroad, 31 Mo. App. 123; Zurfluh v. Railroad, 46 Mo. App. 636; Sheldon v. Railroad, 29 Barb. 226. Inferences which warrant a verdict are those derived from the force of the evidence; not plausible, but, perchance, wholly mistaken surmises of what the truth is. Smart v. Kansas City, 91 Mo. App. 586. From this principle, together with the presumption in favor of right conduct, it follows that a'party who seeks redress from another on account of some asserted omission of duty by the latter, must fail unless proof is brought forward to show in what manner the default occurred. Stepp v. Railroad, 85 Mo. 229; Smart v. Kansas City, supra; Fuchs v. St. Louis, supra; Skipton v. Railroad, 82 Mo. App. 134.

The verdict must stand or fall on the testimony of the plaintiff’s witnesses, and this question confronts us: What influence ought their testimony to carry in view of the conceded fact that the horse and wagon were turned half way round by the force of the car? According to those witnesses, the vehicle was moving on the rails of the north track and the horse in the center of the space between the rails. Freakish effects are sometimes caused by violent impacts of moving bodies, and we are perhaps not warranted to pronounce that the horse and wagon could not have been turned end for end by a straight blow from behind. But after revolving the problem a great deal, we will say that we are unable to conceive how such a consequence could happen. Its extreme improbability, whether tested by experience or by the accepted laws of motion and mechanics, combined with the testimony of disinterested men that the car struck the wagon a side blow instead of a rear one, and thereby naturally knocked the wagon and horse about, have produced the conviction that a miscarriage of justice occurred at the trial. The manner of the collision as described by defendant’s witnesses, consists perfectly with the result that would almost certainly follow a side collision; while the opposite version is nearly or quite incredible, so incompatible is it with the úndenied position of the property immediately subsequent to the accident.

Verdicts resting on evidence which looks contrary to the ordinary course of nature are not infrequently set aside and retrials directed by appellate courts, as a proper precaution against an unjust outcome of litigation. While it is fundamental that juries must weigh evidence and trial judges revise their findings, instances happen in which, from one cause or another, this practice so obviously failed to work out a right result that an imperative call is heard to supplement it by an exceptional procedure in order that justice, the end of all procedure, may not be frustrated. This prerogative of courts of error is sparingly employed; but that it exists, as an emergency expedient, for the correction of verdicts palpably wrong, is certain. The appropriate use of it does not require a court to be convinced that the jury found an event to have occurred that was physically impossible or miraculous. It is enough if the event found was so improbable according to the ordinary operation of physical forces, or was so overwhelmingly disproved by credible witnesses, as to compel the conviction that the jury either failed to weigh the evidence carefully, or drew unwarranted inferences, or yielded to a partisan bias.

We have decided to grant another trial of this cause, having reached that decision, not only after much reflection on the evidence, but after a study of the precedents in this state in which a similar course was taken. They are more numerous than we supposed; thus demonstrating that while appellate tribunals are reluctant to interfere with verdicts on the score of insufficient evidence, they are more reluctant to accept as conclusive one given at the first hearing, if it can not be accounted for by rational theories.

A prominent case is Spohn v. Missouri Pacific Ry. Co., 87 Mo. 74, in which the plaintiff’s story was that he had been frightened into leaping from a moving train and injuring himself, by the threats of the conductor of the train and some other men to tie and rob him. The verdict for that plaintiff was set aside not because he told an impossible story, but one so strange 'and improbable that the jury’s decision must have resulted from partiality or prejudice, rendering a new trial indispensable to the due administration of the law. This appellate action was taken without the existence of natural facts to refute the plaintiff’s case and solely for the reason that it was overborne by contrary evidence and weakened by its improbability.

In State v. Fannon, 158 Mo. 149, it was ruled that certain incredible testimony would be rejected.

In Payne v. Railroad, 136 Mo. 362; Hook v. Railroad, 162 Mo. 569, and other cases, the Supreme Court has refused to allow probative value to the oath of witnesses that they could not see a railroad train when it was in plain sight in daylight.

In Payne v. Railroad, supra, many decisions to that effect are arrayed.

In the Hook case, the majority opinion says:

“The court will treat as unsaid by a witness that which in the very nature of things could not be as said. Though this court will not undertake to measure the probative force of the conflicting testimony of witnesses upon controverted issues of facts, but under our system of practice leaves those matters where the trial court has left them, to the juries, for determination, -still it is not so deaf to the voice of nature or so blind to the laws of physics that every utterance of a witness, in derogation of those laws, will he treated as testimony of probative value for the consideration of the jury, simply because of its utterance. ’ ’

Is it more unlikely that some strange failure of vision, or some mental lapse which prevented visible objects from making an impression on the consciousness, should occur, than that a car should strike a wagon squarely behind and throw it and a horse hitched to it into the position plaintiff’s were found in after this accident? It is to be remarked, too, that Hoppe swore he looked all the time for a car but did not see any, although there was no hindrance to his seeing the one that hurt him; thereby further discrediting his testimony. The fact that he saw the car would not, however, excuse the defendant from the collision, if its servants saw the wagon in time to avoid striking it.

In Nugent v. Milling Co., 131 Mo. 241, the opinion said, relative to some evidence deemed to state an impossible occurrence:

“The statements by a witness of the existence or the non-existence, the occurrence or non-occurrence, of a given thing as a fact that contravenes all laws of mechanics and philosophy that are so generally recognized that courts can not ignore them, can not be said to be matters of fact that must go to the jury for their consideration as to their credibility, on the proposition that the jury are the triers of all the facts in a suit at law.”

Those authorities suffice to exhibit the different aspects in which the question of disallowing weight to evidence on account of its inherent improbability, has been viewed. There are many others (some of them we cite) in which verdicts have been set aside on that ground alone. Baker v. Stonebraker, 36 Mo. 338; Whitsett v. Ransom, 79 Id. 258; Freiz v. Fallon, 24 Mo. App. 439; Empey v. Ry. Co., 45 Mo. App. 422; Walton v. Ry. Co., 49 Id. 620; Glick v. Railway, 57 Id. 97. The warrant for appellate interference of this character is a finding by the jury incomprehensible on any theory consistent with a proper regard for their duty to determine issues according to law and evidence. And such findings are not always due to bias; but now and then, as has been indicated, to some mistake concerning the evidence or to deciding on a conjecture or surmise it does not countenance.

We are not unmindful that a verdict was returned for Hoppe on the same evidence we have before us in this case; but while that fact has given us pause, it has not overcome our conviction that the issues ought to be retried.

The disposition of juries ip, this sort of litigation, as brought to our attention in numerous causes reviewed by us, warns us against accepting at once a finding so unlikely to be right as the one in hand. We are forced to and do tolerate verdicts which strike us as against the great weight of the evidence, when trial judges let them stand. But if there is no substantial testimony to support the verdict, or we believe physical facts point to its unsoundness, the cited cases show it is our duty to interfere to prevent the unjust transfer of money or property from one party to the other.

The judgment is reversed and the cause remanded.

Blrnd, P. J., and Reyburn, J., concur.