Opinion
NOTE: Opinion filed at September Term, 1937, December 17, 1937; motion for rehearing filed; motion overruled at May Term, 1938, May 3, 1938.
1. NEGLIGENCE: Circumstantial Evidence. Facts necessary to sustain a recovery in a civil case may be proven by circumstantial evidence, but the facts and circumstances must be such that the necessary facts to support the verdict may be inferred and must reasonably follow and must exclude conjecture and speculation as to the existence of necessary facts.
Where defendant's two drivers, each driving a truck and trailer traveling on the highway at night one about one hundred feet ahead of the other, passed a man on horseback riding on the shoulder of the highway and a third truck, not defendants, some distance behind, following defendant's trucks, ran over the body of a man and the body of a horse on the highway, there being no evidence as to how the rider and the horse got on the pavement a submissible case that one of defendant's truck drivers was negligent and struck the rider and horse was not made out.
2. HUMANITARIAN RULE: Imminent Peril. Where defendant's drivers of two trucks, each with a trailer, passing along the highway at night, passed a man on horseback riding on the shoulder, and another truck, not belonging to defendant, following the first two ran over the body of a horse and the body of a man on the pavement, there being nothing to show how or why the horse got off the shoulder onto the pavement, the evidence failed to show that the rider or horse was in peril.
The word "peril" under the humanitarian rule must be certain and imminent and defendant charged with negligence must have been able to discover it.
3. NEGLIGENCE: Statements of Defendant. Where one of defendant's two truck drivers after passing a horseman on the highway, who was immediately afterward found dead with his horse, said to the other driver, "I missed him; I guess you must have caught him with your trailer," the other driver remaining silent, if such statement were admissible it was not sufficient under the evidence to make out a case under the humanitarian rule.
Appeal from Randolph Circuit Court. — Hon. A.R. Hammett, Judge.
REVERSED.
Hunter Chamier, T.R. McGinnis and Moser, Marsalek Dearing for appellant.
(1) The evidence is insufficient to prove that defendant's trucks or either of them struck or came in contact with Bates or his horse. To reach such a conclusion, upon this record, requires the illegal piling of inference upon inference; the arbitrary selection of one alleged cause, unsupported by evidence, and the rejection of cogent inferences, supported by the evidence, showing that Bates' injury and death were due to causes for which the defendant is in no degree responsible, and further requires the rejection of the sworn testimony of the witnesses Crumpler and Dees, who were put upon the stand by the plaintiff, and whose testimony that they passed Bates at a safe distance, without contact with him, is the only evidence in the record on said point. Warner v. St. Louis M. Railroad Co., 178 Mo. 125, 77 S.W. 67; Papamichael v. Wells, 33 S.W.2d 1058; State ex rel. Mo. Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 551; Yarnell v. K.C., F.S. M. Ry. Co., 113 Mo. 570, 21 S.W. 1; Hamilton v. St. Louis-S.F. Ry. Co., 318 Mo. 123, 300 S.W. 787; Bibb v. Grady, 231 S.W. 1020; Swearingen v. Wabash Ry. Co., 221 Mo. 644, 120 S.W. 773; State ex rel. City of Macon v. Trimble, 12 S.W.2d 727. (2) Under the well-settled rule, the plaintiff's attempt to make a case resting upon inferences fails because of the proof, by witnesses she placed on the stand, of facts directly contrary to the inferences the plaintiff seeks to draw. Rodan v. St. L. Transit Co., 207 Mo. 392, 105 S.W. 1061; Rashall v. St. L., I.M. S. Ry. Co., 249 Mo. 522, 155 S.W. 426; George v. Mo. Pac. Ry. Co., 213 Mo. App. 668, 251 S.W. 729; Raw v. Maddox, 93 S.W.2d 282; Polkowski v. St. L. Pub. Serv. Co., 229 Mo. App. 24, 68 S.W.2d 884; Manchester Bank v. Harrington, 199 S.W. 242; Stines v. Dillman, 4 S.W.2d 477; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819. (3) The testimony to the effect that one of defendant's drivers said to the other, "I know I missed him and got by and you must have hit him," and that the driver addressed failed to reply, was improperly admitted by the court and was not competent evidence to prove the fact of a collision between the defendant's trucks and the horse or rider. This court en banc has held that "admissions as to mere matters of opinion are not competent as evidence of a fact." The rule to this effect is well settled. Baker v. Keet-Rountree D.G. Co., 318 Mo. 987, 2 S.W.2d 733; Tuggle v. St. L., K.C. N. Railroad Co., 62 Mo. 425; Crockett v. Morrison, 11 Mo. 3; Wright v. Quattrochi, 330 Mo. 173, 49 S.W.2d 7; Tappe v. Pohlmann, 79 S.W.2d 488; Inzerillo v. C., B. Q. Railroad Co., 225 Mo. App. 1220, 35 S.W.2d 44; Red Arrow Freight Lines v. Gravis, 84 S.W.2d 540; Lanham v. Wright, 142 So. 5; Kuhlen v. Chicago Athletic Assn., 185 Ill. App. 579; Aschenbach v. Keene, 46 Misc. 600, 92 N.Y.S. 764; Pulver v. Union Inv. Co., 279 F. 705; 22 C.J., p. 299, sec. 326. Said evidence was no part of the res gestae. The alleged statement was a conclusion or opinion and also a self-serving statement by the speaker, tending to exculpate himself from blame. As such it was not spontaneous, as is required under the res gestae rule. State ex rel. Vesper Buick Auto Co. v. Daues, 323 Mo. 388, 19 S.W.2d 700; Atkinson v. Amer. School of Osteopathy, 240 Mo. 355, 144 S.W. 816; Redmon v. Met. St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Leahey v. Cass Av. F.G. Ry. Co., 97 Mo. 165, 10 S.W. 58; Barker v. St. L., I.M. S. Ry. Co., 126 Mo. 143, 28 S.W. 866; Ruschenberg v. Southern Elec. Ry. Co., 161 Mo. 70, 61 S.W. 626; Koenig v. Union Depot Railroad Co., 173 Mo. 698, 73 S.W. 637; Frye v. St. L., I.M. S. Ry. Co., 200 Mo. 377, 405-6, 98 S.W. 566. (4) At the close of all the evidence plaintiff abandoned all her allegations of negligence save her allegation based on the humanitarian theory. To sustain a recovery under that theory it would be necessary to assume that at some point the horse and rider got into a position of peril from an oncoming vehicle; that said vehicle was one of the defendant's trucks; that the horse and rider were in such position of peril far enough ahead of the vehicle so that the driver could have averted the collision; that the driver saw or could have seen them in said position in time to have prevented the collision; that the truck struck the horse and rider and that they were thereby thrown to the center of the road in the position they were found. There is no basis whatever in the evidence for this series of assumptions, and the repeated decisions of this court condemn verdicts based upon such an unwarranted and speculative course of reasoning. Miller v. Wilson, 288 S.W. 997; Lee v. Jones, 181 Mo. 291, 79 S.W. 927; Winter v. Van Blarcom, 258 Mo. 418, 167 S.W. 498; Hamilton v. K.C. So. Ry. Co., 250 Mo. 714, 157 S.W. 622; Whitesides v. C., B. Q. Railroad Co., 186 Mo. App. 621, 172 S.W. 467; Newell v. Dickinson, 207 Mo. App. 369, 233 S.W. 72; Wilson v. Washington Flour Mill Co., 245 S.W. 205.
Hulen Walden for respondent.
(1) The evidence was sufficient to prove that one or more of defendant's trucks struck Bates and his horse, and that Bates's injuries and death were due to causes for which the defendant is responsible, and this conclusion can be reached on the record without violating the rule of basing one inference on another. (a) In reviewing the overruling of defendant's demurrers to the evidence, after a verdict for plaintiff, the appellate court will take plaintiff's favorable evidence as true, give plaintiff the benefit of every reasonable inference from all the evidence, and disregard contradictory evidence. Moller-Vandenbloom Lbr. Co. v. Bonderau, 85 S.W.2d 147; State ex rel. St. Charles v. Haid, 28 S.W.2d 97, 325 Mo. 107; Knight v. Wabash Ry. Co., 85 S.W.2d 392. (b) As many inferences as facts establish, either by direct or circumstantial evidence, may be drawn, as those facts will justify, so long as one inference is not based on another. Beaber v. Kurn, 91 S.W.2d 70; Kelly v. Kansas City B. L. Assn., 229 Mo. App. 686, 81 S.W.2d 440; Am. Veterinary Lab. v. Glidden Co., 59 S.W.2d 60; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97; Martin v. St. L.-S.F. Ry. Co., 329 Mo. 729, 46 S.W.2d 149. (c) All or part of plaintiff's case may be based on circumstantial evidence, so long as one inference is not based on another. Boggess v. K.C. Rys. Co., 207 Mo. App. 1, 229 S.W. 404; Freeman v. K.C. Pub. Serv. Co., 30 S.W.2d 176; Settle v. Railroad Co., 127 Mo. 336, 30 S.W. 125. (2) The fact that the drivers of defendant's trucks testified for plaintiff, and later, while testifying for defendant, said that they did not strike Bates or his horse, does not make such statement conclusive on plaintiff, nor does it destroy the inference that they did strike Bates and his horse, arising from other facts proven in the case. (a) While on the stand as witnesses for defendant, the drivers were defendant's witnesses, even though they had testified theretofore for plaintiff, and plaintiff is not concluded by testimony given by them while testifying for defendant. State ex rel. v. Branch, 151 Mo. 641, 52 S.W. 390; Steinmetz v. Saathoff, 84 S.W.2d 434; Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 355. (b) The mere fact that the drivers of defendant's trucks testified that they did not strike Bates does not destroy the force of the substantial proof produced by plaintiff that the trucks did strike Bates, and this is true, even if the drivers were plaintiff's witnesses when they so testified; whether to accept the statement of the drivers or the other proof upon the matter was for the jury to decide. Martin v. St. L.-S.F. Ry. Co., 329 Mo. 729, 46 S.W.2d 149; Klaber v. Fidelity Bldg. Co., 19 S.W.2d 762; Smith v. Ohio Miller's Mut. Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 929; State ex rel. v. Cox, 293 S.W. 122; Rollison v. Wabash Ry. Co., 252 Mo. 539, 160 S.W. 998; Smith v. K.C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 553; Maginnis v. Mo. Pac. Ry. Co., 268 Mo. 667, 187 S.W. 1167; Voorhees v. C., R.I. P. Railroad Co., 325 Mo. 835, 7 S.W.2d 740. (3) The court properly admitted the testimony that one of the drivers, at the scene of the accident, said to the other, "I know I missed him and got by, and you must have hit him," and that the other driver remained silent. The silence of the driver, under the circumstances, constituted an admission against his interest. State ex rel. v. Flynn, 66 Mo. App. 379; Ball v. Independence, 41 Mo. App. 469; Atkinson v. Amer. School of Osteopathy, 199 Mo. App. 251, 202 S.W. 457; 22 C.J., pp. 322, 323. (4) Plaintiff, proceeding under the humanitarian doctrine, proved, either by direct evidence or by legitimate inference arising from proven facts: That the horse and rider were in a position of peril from defendant's trucks; that the horse and rider were seen in such position of imminent peril by defendant's drivers in time for them to have prevented the collision, by means of appliances at hand, with safety to themselves; that defendant's truck struck the horse and rider and threw them to the pavement. In each instance, the proof consisted of direct testimony, or an inference based on fact, and not on another inference or inferences. Plaintiff was entitled to have the jury draw as many inferences as they might choose, so long as the facts justified the inferences and one inference was not based on another. Plaintiff's evidence need not exclude the possibility of accident or cause for which defendant is not liable, if there is substantial evidence that the injury resulted from a cause for which defendant is liable. State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97. Where, after a verdict, an inference can be drawn from the facts, favorable to plaintiff's case, with equal propriety as one unfavorable, the favorable inference should be drawn.
Respondent, Mable Bates, obtained a judgment in the sum of $10,000, against appellant, Brown Shoe Company, as damages for the death of her husband.
Appellant has briefed a number of points upon which a reversal of the judgment is sought, among them, that the evidence was insufficient to sustain the judgment. The case was submitted to a jury solely under the humanitarian rule. Since we have concluded that appellant's contention, above mentioned, must be sustained, other points need not be considered. We will attempt to state the case as favorable to plaintiff as the evidence justifies. Plaintiff's husband, whom we will refer to as the deceased, met his death on January 7, 1935, at about 11:30 P.M., on Highway 63, about a quarter of a mile north of Renick and a few miles south of Moberly, Missouri. Highway 63, at this point, consists of a concrete slab eighteen feet wide with an earth shoulder on each side about six or seven feet in width. The night in question was dark, rainy and foggy. Jean Crumpler and Leslie Dees were truck drivers for the appellant shoe company. They were both made defendants in the case, but plaintiff dismissed as to them at the close of her evidence. These truck drivers made regular nightly round trips, with loads of freight, between St. Louis and Moberly. The trucks consisted of a tractor and trailer and when loaded weighed about twenty-five thousand pounds. The front wheels of the tractor were single wheels and the rear dual. The front end of the trailer, when enroute, rested upon the tractor over the dual wheels, and the rear end of the trailer was supported by a set of dual wheels. These trucks were about thirty-four feet in length. On the night in question the trucks left Moberly shortly after eleven-thirty P.M., with Crumpler in the lead and Dees following at a distance of about one hundred feet. Following these trucks at some distance was a third truck of similar construction, belonging to the Missouri Relief Association and driven by one Victor Hooper. The three truck drivers were called by plaintiff as witnesses. Crumpler testified that as he was going south on the highway, at a speed of about twenty miles per hour, he noticed a man riding a horse south along the west side of the pavement; that he swerved to the left and passed; that after he had passed a short distance Dees signaled with his lights to stop and he did so. He testified that Dees informed him that he, Dees, thought the horse had thrown the man. Not wanting to stop on the pavement they drove their trucks about a quarter of a mile south to a filling station, then started to walk north. Dees testified that he was following Crumpler's truck at a distance of about one hundred feet when he noticed Crumpler's truck swerve to the left; that he also began to turn to the left; that he saw the man and horse on the shoulder to the west of the concrete just as Crumpler's truck passed them. Dees further stated that there was nothing unusual happened until he was about even with the horse and rider; that then he noticed the horse rear upon its hind legs; that at that time his truck was on the east side of the pavement. He also stated that he signaled for Crumpler to stop; that his purpose was to see if the horse had thrown the rider, and if so to render whatever aid was necessary. Hooper, the driver of the relief truck, testified that he was driving south on the highway when he noticed an object ahead of him lying on the west side of the pavement; that he slowed down his truck a little and turned to the left to avoid striking this object and then noticed another object lying on the east side of the road; that it was then too late for him to stop so he attempted to drive his truck between the two objects, but was unable to do so; that the dual wheels of the tractor passed over the rump of the horse, but that the tractor did not run over the deceased. Hooper further testified that neither of the objects moved as he approached them. The east wheels of Hooper's truck passed over the shoulder of the roadway east of the pavement and south of where the horse and deceased were found. The truck was stopped some distance south on the west side of the highway. By this time Crumpler and Dees arrived. Crumpler, Dees, Hooper and Dr. C.C. Smith, who happened to be traveling north, went to the scene and found deceased and his horse on the pavement, both dead. The horse was lying on the west side of the pavement upon her left side with feet toward Moberly and head to the southwest. The rear end of the horse was about eighteen inches from the center line of the pavement. The deceased was lying on the east side of the road with his head toward Moberly. His head was about four feet from the center line of the road and his feet about eighteen inches therefrom. The feet of the deceased were about opposite the rump of the horse. An examination disclosed that at least one of the truck wheels had passed over the rump of the horse. The horse had also sustained an injury to its head. The deceased's body disclosed that truck wheels had passed over his right arm, shoulder and his chest. Another set of dual wheels had passed over his legs below the knees. It had been raining, and witnesses testified that tracks of truck wheels were traceable from deceased's body to the place where Hooper's truck was standing. The position of the horse and deceased upon the pavement was such, that if the right dual wheels of Hooper's truck passed over the rear end of the horse, then the left wheels of the truck must have passed over deceased's body. This truck was thirty-four feet long with three sets of wheels. The distance between the wheels, from side to side, was about four feet. When Hooper turned to the left, or east, in an attempt to pass between the objects in the road the rear wheels naturally would not follow the tracks made by the front wheels, but would pass to the east. Thus, the physical facts disclose that Hooper's truck wheels must have passed over the deceased.
A Missouri State Highway Patrolman appeared upon the scene, and also a coroner's jury which had been summoned. The coroner's jury and the patrolman made a thorough examination of all three trucks. Not the slightest evidence was found upon either of defendant's trucks to indicate that they had come in contact with deceased or the horse. Hooper's truck disclosed that the right front bumper and the right front and rear fenders were bent back. The crank, which is used to lower and raise the dolly wheels of the trailer, was bent, and horse hair and blood were found at various places upon this truck. An examination of the west shoulder of the highway disclosed horse tracks beginning about fifteen feet north of where the horse was lying and extending north for a distance of more than one hundred and fifty feet.
Plaintiff was permitted, over appellant's objection, to introduce evidence of a statement, alleged to have been made by Crumper to Dees at the scene of the accident, of the following tenor, "I missed him; I guess you must have caught him with your trailer," and also evidence that Dees made no response. This was alleged to have occurred immediately after the truck drivers and Dr. Smith arrived at the scene of the accident. It was also shown that during this time no other trucks or cars passed either north or south.
The question before us then is, whether the facts above stated are sufficient to sustain the judgment. Facts necessary to sustain a recovery in a civil case may be proven by circumstantial evidence, but the facts and circumstances proven must be such that the necessary facts to support a verdict may be inferred and must reasonably follow. Such evidence must exclude guess work, conjecture and speculation as to the existence of the necessary facts. [22 C.J. 65, sec. 8; Fritz Groh v. St. Louis, I.M. S. Railroad Co., 243 Mo. 62, 148 S.W. 74, l.c. 78.]
For plaintiffff to recover in this case it was incumbent on her to prove, among other facts, that one of defendant's trucks struck the deceased, or the horse, and also that the deceased was in a position of imminent peril, as that term is understood under our humanitarian doctrine. We do not think that the evidence in this case justifies the inference that the deceased, or the horse, was struck by one of defendant's trucks. It is just as logical, if not more so, to infer from the facts proven that the horse became frightened, or for some reason became unruly, and because of the wet pavement slipped and fell and injured his head; that at the same time the deceased was thrown to the pavement; that the truck driven by Hooper, then passed over them. Whether plaintiff's husband and the horse were dead, or only stunned, prior to the time Hooper's truck passed over them, will never be known. The fact that the trucks of the defendant did not disclose even the slightest mark of having come in contact with the deceased or the horse was a strong circumstance corroborative of Dees' evidence that his truck did not strike the rider or the horse, but that as he passed the horse reared. We have here a state of facts where a reasonable mind might conjecture that one thing happened, another that something else happened and a third might not agree with either. Sound reasoning, however, does not point to the liability of the defendant to the exclusion of other causes. A verdict cannot be sustained by such evidence. [See Fritz Groh v. St. Louis, I.M. S. Railroad Co., supra.]
But even though, per chance, we are wrong in this conclusion, the judgment cannot be sustained because the evidence wholly failed to show that the deceased was in a position of imminent peril, or that the drivers of defendant's trucks were negligent. Plaintiff, by her evidence, showed that the horse and rider were going south, and the evidence most favorable to plaintiff was that the horse was walking an ordinary gait on the line of the pavement and the west shoulder. There was no traffic upon the highway at the time, except the defendant's trucks going south at about twenty miles per hour. We ask, where was there any imminent peril? That the first truck passed without injuring the horse or its rider was proven without doubt. The driver of the second truck, Mr. Dees, when upon the witness stand for plaintiff, testified as follows:
"Q. After you saw Mr. Bates by your lights, on the horse on the right side of the pavement, tell the jury whether or not, under the conditions as they existed there that night, with the equipment you had, if you had plenty of time, if you so desired to do it, to stop your truck with safety to yourself and to your load before you got to Mr. Bates? A. I could have, yes.
"Q. Tell the jury, under the conditions existing that night, after you saw Mr. Bates and his horse, if you had plenty of time, with safety to yourself and load, to turn your truck to the east side of the pavement and pass him? A. I did; yes, sir.
"Q. You had ample time to do that? A. Yes, sir.
"Q. What was the rate of your speed? A. Around twenty miles an hour at the time I saw Mr. Bates.
"Q. What was the condition of the weather there? A. Foggy.
"Q. Could you form an idea how far back it was to the knoll of that little hill north of where Mr. Bates was struck? A. I would say possibly five or six hundred feet — something like that.
"Q. Did you see Mr. Bates' horse shy there that night — rear? A. As I was passing, yes, sir; he reared on his hind legs with his front feet up in the air.
"Q. How many times did he rear? A. Once is all I saw as I was passing. He was on the road shoulder.
"Q. Was he even with your truck? A. Well, as much as I could see out of the windshield, he would be almost opposite the cab, by the reflection of the lights.
"Q. In other words, the front part of your truck was past him, and he was about even with where you were sitting in the truck? A. Approximately that; yes, sir.
"Q. Whereabouts was your truck? A. On the left side of the slab, going south, when I saw him rear."
There was no evidence introduced at variance with the evidence just quoted. The physical facts, as shown by the evidence, tended to support rather than contradict the evidence of Dees. The statement alleged to have been made by Crumpler to Dees, "I missed him; I guess you must have caught him with your trailer," even if admissible, would not add sufficient material to the evidence to make a case under the humanitarian doctrine. The statement, if made, was merely an expression of an opinion. The only statement of fact contained therein is, "I missed him." We have consistently ruled that "imminent peril" means more than a possibility of injury to the person affected. In State ex rel. v. Trimble et al., 300 Mo. 92, 253 S.W. 1014, l.c. 1019, this court said:
"The word `peril' as used in the rule of `discovered peril,' `humanitarian rule' or `last chance doctrine' means something more than a bare possibility of an injury occurring."
The peril must be certain and imminent and the defendant must have been able to have discovered such peril. [Banks v. Morris Co., 302 Mo. 254, l.c. 273, 257 S.W. 482; Ziegelmeier v. East St. Louis Suburban Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027, l.c. 1029 (2-3); Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713; Edwards v. Terminal Railroad Assn. of St. Louis, 341 Mo. 235, 108 S.W.2d 140.] We think it is apparent that the evidence wholly failed to show that deceased was in a position of peril at the time the defendant's trucks were approaching, or that defendant's truck drivers were negligent.
The judgment is, therefore, reversed. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.