JAMES H. WOODWARD v. MARY J. BLYTHE, ADM‘X., ESTATE OF KERMIT A. BLYTHE, DECEASED
5-4750
Supreme Court of Arkansas
April 28, 1969
Rehearing denied May 26, 1969.
439 S.W. 2d 919
FRANK HOLT, Justice. This case results from a multiple car collision. Upon a jury trial, the issues of negligence and damages were found against the appellant and a codefendant, Leonard Johnson, who does not appeal. The jury awarded $137,000.00 to appellee. For reversal the appellant first contends that there was no substantial evidence to support a finding that appellant was guilty of negligence which was a proximate cause of any accident or collision involving his vehicle.
It is a well settled rule that if there is any substantial evidence of negligence by a defendant, when viewed in the light most favorable to a plaintiff and given its highest probative value, the question must be submitted to the jury. Gookin v. Locke, 240 Ark. 1005, 405 S.W. 2d 256 (1966).
This accident occurred about 6:15 a.m. on February 14, 1966, on Highway 70 about five miles west of Brinkley, Arkansas. The highway was 24 feet 5 inches wide, with each shoulder being 9 feet 5 inches in width. It was dark, the road was straight and level, and weather conditions presented no hazards. Appellee‘s decedent, Kermit Blythe, was driving a red Corvair in an easterly direction. Following him was the appellant who was driving a light blue Dodge. The decedent suddenly veered to his left to avoid striking a stalled and unlighted Cadillac which was headed in the same direction, positioned on the right shoulder of the highway and partially on the pavement. This car was being operated by the codefendant, Johnson. When the decedent pulled to his left to pass the stalled vehicle, he crossed the center line about 18 inches whereupon the left front portion of his car collided with an oncoming Pontiac automobile. This collision caused the Blythe Corvair‘s direction to be reversed and its left front portion to be positioned in the path of appellant‘s eastbound automobile. Appellant‘s vehicle skidded 83 1/2 feet before striking the left
We have held many times “that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.”
Appellant next asserts there was no substantial evidence to support a finding that appellee‘s decedent was alive following the collision between his Corvair and the Pontiac and, therefore, there was no substantial evidence that any negligence on the part of appellant caused or contributed to the cause of death of appellee‘s decedent. We must agree with appellant on this contention. The appellee‘s decedent was found dead in his Corvair within a few minutes following the second collision. The first collision occurred when appellee‘s decedent collided with the oncoming Pontiac. From the physical evidence, the entire left side of the Pontiac was damaged with a shearing or ripping effect. The left rear door was torn from the car and one of the seven passengers in this vehicle was killed. After this impact the Pontiac continued westward in its proper lane, veering to the right, for 18 feet and then along the shoulder for another 36 feet where it stopped on the edge of the shoulder embankment. The force of this impact, however, reversed the direction of the Corvair and positioned it in the path of the oncoming vehicle driven by appellant. According to appellant, he was following the Corvair at 60 miles
Even though we find substantial evidence of negligence on the part of appellant, there was still the burden of proof upon the appellee to establish that such negligence was a proximate or contributing cause of the death of appellee‘s decedent. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W. 2d 290 (1963); Kapp v. Sullivan Chev. Co., 234 Ark. 415, 353 S.W. 2d 5 (1962).
In Kapp we said:
“To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and
where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.”
See Superior Forwarding Co. v. Garner, supra; Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W. 2d 4 (1948); 22 Am. Jur. 2d, Death §§ 222 and 243.
In the recent case of Ellsworth Bros. Truck Lines, Inc. v. Canady, 245 Ark. 1055, 437 S.W. 2d 243 (1969), we said:
“It is not sufficient to show that the injuries suffered might have been caused when appellant‘s vehicle hit the rear of the Heaggan automobile. This causal connection between a plaintiff‘s damages and the defendant‘s negligence must be established by direct or circumstantial evidence, and it cannot be proved by conjecture or speculation. (citing cases)”
See, also, Prosser on Torts, (3d Ed. p. 245).
In the case at bar there is no contention that appellant in any manner contributed to the first collision. From the evidence in this case, we are forced to the view that only by conjecture and speculation could it be said that appellee‘s decedent was or was not alive when this second impact occurred and that negligence on the part of appellant was a proximate or contributing cause of the death. Therefore, we must reverse this judgment.
However, we do not think that reversal of this judgment requires its dismissal. In St. Louis Southwestern Railway Co. v. Clemons, 242 Ark. 707, 415 S.W. 2d 332 (1967), it was aptly said:
“We come now to the question of whether this case should be dismissed or remanded. This court has long adhered to the rule so well reiterated in Fidelity Mutual Life Insurance Co. v. Beck, 84 Ark. 57, 104 S.W. 533 and 1102 (1907). The general rule is to remand common law cases for new trial. Only exceptional reasons justify a dismissal. One of the exceptions is an affirmative showing that there can be no recovery. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108 (1892). There it was said that when a trial record discloses ‘a simple failure of proof, justice would demand that we remand the cause and allow plaintiff an opportunity to supply the defect.’ To the same effect, see Hinton v. Bryant, 232 Ark. 688, 339 S.W. 2d 621 (1961).”
In the case at bar there is a deficiency of proof as to whether appellant‘s negligence was a proximate cause of decedent‘s death. It is not impossible that such a deficiency of proof could be supplied upon a retrial.
The appellant next contends, in the alternative, that the trial court erred in modifying, amending, and changing the verdict as returned by the jury. We agree that this also constituted reversible error. However, we do not deem it necessary to discuss this point since this error is not likely to occur again upon a retrial.
Reversed and remanded.
FOGLEMAN, J., concurs.
JOHN A. FOGLEMAN. I concur in the disposition of this case. I would remand for new trial upon the basis that the lack of substantial evidence is due to the failure of the appellee to show causation where expert testimony might have supplied the deficiency in accordance with the views stated in my concurring opinion in Continental Geophysical Co. v. Adair, 243 Ark. 589, 594, 420 S.W. 2d 836 (1967). See Reynolds Metal Co. v. Ball, 217 Ark. 579, 232 S.W. 2d 441.