128 Tex. 582 | Tex. | 1937
delivered the opinion of the Commission of Appeals, Section A.
This case involves a judgment for $15,000.00 in favor of defendants in error, Jack McCann and his five minor children, against plaintiff in error, Western Telephone Corporation of Texas. The judgment was for damages on account of the death of Mrs. Sarah McCann, the wife and mother of defendants in error. The Court of Civil Appeals affirmed the judgment of the district court. 69 S. W. (2d) 465. The parties will be designated as in the trial court.
Mrs. McCann was killed by a stroke of lightning August 26, 1932, while standing on the porch of her home near Taft, Texas, and during a rain and electrical storm. The McCann house was situated about 50 feet north of and facing a paved highway, running approximately east and west. Defendant owned a telephone line, which was strung on wooden poles 30 feet high and
At the time Mrs. McCann was killed a severe bolt of lightning struck the telephone pole east of and 180 feet from the pole in front of the McCann house. The pole that was struck is referred to as pole “A.” It was shattered to within about 2 feet of the ground. The through wire, that is the wire at or near the top of the pole, was severed. The local wire was not broken or burned, but was caused to sag. One end of the
The theory of plaintiffs is that the bolt of lightning which struck pole “A” 180 feet east of the pole in front of the house, and which severed the through line, in some manner surcharged the local line with a current of electricity, which current coursed westward to pole “X” in front of the house, where it left the local wire and surcharged the drop wire, with which it coursed to the end of that wire at the spool; that it then left the end of the wire, going through the porch plate at somewhat of an
“Plaintiff in error contends that under all evidence submitted in this case, and where there is any conflict in the evidence whatever, taking the evidence of the plaintiffs in the court below, that it is insufficient as a matter of law to show any liability on the part of the plaintiff in error for the death of Mrs. McCann. The outstanding fact in this case is that the immediate, moving and efficient cause .of the death of Mrs. McCann was an act of God, a tremendous bolt of lightning, and that only by the merest conjecture, without any evidence of substantial nature to support it, can any act of omission of the plaintiff in error be considered as contributing in any -way to her death.” '
It is admitted that Mrs. McCann was killed by lightning. It is claimed by plaintiff that the stroke of lightning which killed Mrs. McCann is the one which struck telephone pole “A.” In order to sustain their contention they must of necessity show a direct connection between that stroke and the body of Mrs. McCann, and that connection must have been effectuated through defendant’s wires, otherwise its negligence in leaving the drop wire dead ended at the porch had nothing to do with the death. No one of course could have seen or did see the lightning coursing from pole “A” to Mrs. McCann’s body. The conclusion that it did so course must necessarily rest upon circumstances, presumptions or conjectures.
In 45 Corpus Juris, pages 1267 to 1271, it is stated that the cause of an injury, or the causal connection between an event and an injury, may be established by circumstances, in the absence of direct proof, but the degree of certainty required from such circumstantial proof is indicated by the following state-' ment:
“* * * Upon the other hand, the- causal connection between defendant’s act or omission and the injury must not be left a matter of surmise or conjecture, and cannot be established by*587 evidence which is merely consistent with or indicates a mere possibility or probability thereof, as by evidence which merely shows two or more possible causes of the injury, for not all of which defendant is responsible; or which leaves it a matter of speculation or conjecture as between such causes; or which is equally consistent with the theory that the injury resulted from a cause for which defendant is not responsible; or which is equally balanced or permits of equally reasonable inferences or equally permissible conclusions as between a cause or causes for which defendant is responsible and a cause or causes for which he is not responsible; or where the injury may with equal fairness or probability or likelihood or as reasonably or with greater probability be attributed to a cause which will excuse defendant as to a cause which will subject him to liability.”
Just here we may observe that on the trial of the case defendant offered the testimony of four specialists in the field of electricity. One of these was Professor S. W. Bass, a teacher of electrical engineering in the Texas College of Arts and Industries at Kingsville. Another was Professor William R Work of the Carnegie Institute of Technology. Another was Professor Charles L. Kinsloe, head of the Department of Electrical Engineering of Pennsylvania State College. Still another was Professor E. J. Shimek, Electrical Engineer, and teacher of electricity in Rice Institute at Houston, Texas. These parties were not only graduate electrical engineers, but had made special study in the field of atmospheric electricity, or lightning, and were familiar with the works of recognized authorities in this field. Some of them had done extensive research work in connection with the laws and phenomena of lighting. They each testified to certain facts concerning lightning and its activity# in addition to giving their opinion concerning the cause of the death of Mrs. McCann. They each in substance concurred with Professor Kinsloe in the following .statement:
“The popular conception of a ‘lightning stroke’ is that it consists of a simple, single passage of electricity, over a well defined and continuous path, from the' clouds to earth. This idea is entirely wrong. The fact is that this natural phenomena is highly complex. This may be merely between clouds or to earth, and usually it is of rather limited severity. However, this primary discharge immediately releases subsequent or secondary discharges which may be, and very frequently are, of much greater severity than the original discharge. A single, isolated discharge, in all probability, never occurs. Moreover,*588 usually there is not a single discharge, through one definite path from clouds to earth. Ordinarily there are multiple paths to earth, which fact accounts for the common experience of more than one object being ‘struck by lightning’ at a given time and in the same general area, although the affected area may be quite large. Due to the great rapidity with which these discharges follow each other, they may appear to occur simultaneously. Not all of these discharges are of equal violence, nor do they all result in the same damage. Frequently the condition here described is visible to the naked eye, and so called ‘forked lightning’ is a familiar sight. Finally, it must not be assumed that during a discharge electricity will necessarily follow an all-metallic path where such a path is provided. It has been pointed out that under the abnormal conditions preceding a ‘lightning stroke’ air and other substances become good conductors of electricity, and frequently they offer less oppositioh to the passage of high frequency currents than do metallic substances. It is for this reason that lightning rods all too often fail to protect a barn or other building to which they are attached. Many instances are known where lightning will strike the roof of a building rather than a lightning rod installed on the same roof, and will go to ground through the building rather than through the metal wire which connected the rod to the ground.”
These parties each gave it as his opinion that Mrs. McCann was struck and killed by a “side stroke,” or independent discharge of lightning, which accompanied the main stroke that destroyed telephone pole “A.” In view of this testimony, which was not disputed, plaintiffs’ testimony fell far short of even tending to negative the idea that Mrs. McCann’s death had been caused by some agency wholly independent of the negligence of defendant. In fact the testimony of the electrical experts practically excluded the idea that her death could have been caused in the manner claimed by plaintiffs. However, in view of the probable suggestion that the findings of the jury required that this testimony should all be disregarded (which we need not decide), we shall proceed to discuss the case upon the theory that plaintiffs, in the light of all facts and circumstances favorable to them, failed to prove a prima facie case of liability.
We do not find it necessary to adopt all that is said in the foregoing excerpt from Corpus Juris, because we have reached the conclusion" that plaintiffs have wholly failed, except by resort to unauthorized speculation and assumption, to prove
“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 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.”
The same rule is likewise very forcefully stated in the case of Byerly v. Consolidated Light, Power & Ice Co., 130 Mo. App., 593, 109 S. W., 1065, in this language:
*590 “* * * We sanction the contention of plaintiff that the causal connection need not be shown by direct and positive evidence, but may be shown by other facts and circumstances, and that in the consideration of a demurrer to the evidence every reasonable inference should be indulged in favor of the plaintiff. But the rule is elemental that the burden remains with plaintiff to the end of the case to establish by proof, not only the fact of the negligence averred, blit also to show a direct connection between such negligence and the injury. Where the ultimate fact is not susceptible of direct proof, its existence must directly follow as a reasonable conclusion from its basic facts and circumstances, and it may be stated as an axiomatic rule that whenever court or jury are left by the evidence in a situation where, in order to find the ultimate fact alleged, they must piece out the facts adduced with conjecture or supposition, the plaintiff must be held to have failed in his proof. Where the evidence shows the injury might have been caused by the negligent act, but, in its aspect most favorable to plaintiff, is just as consistent with the inference that the injury might have been produced by another cause, to send the case to the jury would be to accord them the right to make an arbitrary choice between equally probable but unproved conclusions, and thus the verdict, if for the plaintiff, would be based not entirely on evidence, but in part on mere speculation and conjecture. This would mean a reversal of the rule imposing the burden of proof on the plaintiff, since the defendant, in order to prevent the jury from making him the victim of conjecture, would be forced to assume the burden of showing that his negligence .did not produce the injury.” (Emphasis ours).
A practical application of this rule has been made by the Court of Civil Appeals at Texarkana in two cases where there was an injury by lightning. The first case is that of Southwestern Telegraph & Telephone Co. v. Morris, 106 S. W., 426. In that case plaintiff’s horse had been killed by lightning while apparently standing under a telephone wire which was suspended only a foot or two above his head. There was evidence showing that lightning had struck one or some of the telephone poles and had also struck a wire fence nearby. It was contended by plaintiff that the horse was killed by a current of electricity jumping from the sagged wire to the head of the horse. In denying liability, the court said:
“* * * Was the horse killed by electricity which came from the wires, or directly by a bolt of lightning from the clouds ? If*591 the same bolt of lightning struck both the telephone line and the horse, but if the wire did not control the path of the bolt from the clouds to the earth so as to be the proximate cause of the bolt’s striking the horse, the appellant as a matter of law would not be liable. It is not sufficient that the wire was a possible consequence of conducting the lightning to the horse." (Emphasis ours).
The other case is that of Lumpkin v. Texarkana Gas & Electric Company, 164 S. W., 435, where the facts were in some respects similar to the facts here. The court held in that case that the plaintiff had failed to prove a case of liability on the part of defendant.
In the case of Texas & N. O. Ry. Co. v. Warden, 125 Texas, 193, 78 S. W. (2d) 164, in an opinion adopted by the Supreme Court, the following holding was made, as shown by the syllabus:
“Facts may be established in civil cases by circumstantial evidence, but, for other proven facts to establish fact, main fact sought to be proved must follow as natural or very probable sequence from facts actually proven, and conclusion based on mere speculation from facts or circumstances proven is not justified.”
By way of illustrating the proposition that the findings of the jury in this case must of necessity have rested upon several mere conjectures or assumptions we quote the following statement from the opinion of the Court of Civil Appeals, wherein is set forth the theory upon which it thought the judgment of the -trial court could be upheld. Speaking of the bolt of lightning which struck telephone pole “A” the court said:
“* * * The next pole to the east, 180 feet away, was the one upon which the bolt of lightning vented its concentrated force, destroying it as if it were made of glass. The bolt generated the currents which wrought the death and destruction evidenced all about. It sought numerous outlets. One tentacle blasted, a hole in the ground at the base of the pole, searching out and exposing an underground metal gas main. One clung to one end of the through wire to kill the palm tree, while another coursed eastward along the other end of the. severed wire blasting down the full length of the next line pole 175 feet to the east, and the next, and. the next, where its remaining force appears to have been exhausted, or found refuge, in the earth, 500 feet from the point of its origin. The remaining tentacle seized upon the local wire and followed it west to its intersec*592 tion with the drop wire, which it seized in turn and followed downward to its dead end on the porch plate, blasting the latter, killing Mrs. McCann (the next nearest target), felling her daughter, partially shattering the adjacent door and screen.”
The first apparent assumption we note is that a bolt of lightning venting its concentrated force upon a telephone pole will “generate currents.” We do not think that even the expert testimony would authorize such an assumption. The next manifest assumption is that a bolt of lightning has numerous “tentacles.” In the absence of the expert testimony there was nothing to suggest an inference of “tentacles.” The expert testimony showed that instead of tentacles there were in fact “side strokes” which accompanied a bolt of lightning and which were calculated to strike in numerous places within the vicinity where the main bolt might strike. The next assumption is that one of the tentacles clung to one end of the through wire after it was severed until it was thrown in contact with the palm tree. The expert testimony showed that the duration of a current of electricity from a stroke of lightning is less than one thousandth of a second, or only a few millionths of a second. The next assumption (which is the one upon which the findings of the jury must absolutely depend) is that the “remaining tentacle seized upon the local wire and followed; it west-to its intersection with the drop wire, which it seized in turn and followed downward to its dead end at the porch plate.” This not only involves the assumption that the tentacle would “seize upon the local wire,” but the further assumption that when it followed the straight wire as far as pole “X” in front of the house it would entirely abandon or jump from that wire to the drop wire. This is evident from the fact that although the through wire went directly into the Nelson house, without the intervention of a drop wire, and dead ended on a table, no harm was done there at all. The further assumption is required that the current of electricity would follow each of these wires and leave the end at the porch without leaving any evidence of burn whatever. These assumptions make it necessary to further assume that after reaching the spool at the plate porch, instead of the current following the porch post to the concrete block and into the ground, it penetrated the plate somewhat as a bullet or other missle, left it on the inside, and “jumped” some 3 feet or more to Mrs. McCann’s head.
The case of Sinkovich v. Bell Telephone Company, 286 Pa., 427, 133 Atl., 629, by the Supreme Court of Pennsylvania; is in
This being a case depending to a great extent upon circumstantial evidence, if we give effect to the testimony of the experts, we find that "the death of Mrs. McCann may be accounted for upon a theory much more probable than the one offered by plaintiffs. This being true, under many authorities, the plaintiffs failed to make a case. If the expert testimony be disregarded, we have a situation where it was undoubtedly necessary for plaintiffs to “piece out the facts adduced with conjectures or suggestions,” and for this reason the finding of the jury to the effect that defendant’s negligence was the proximate cause of Mrs. McCann’s death is without legal'evidence to support it.
The judgments of the Court of Civil Appeals and of the trial court are reversed, and the cause is remanded.
Opinion adopted by the Supreme Court January 6, 1937.
Rehearing overruled February 3, 1937.