The general rule is that in an action for negligence the negligence of the defendant will not be presumed as against a plea of not guilty. There may be exceptions to this rule, but they are not applicable to this case. *Page 17
Where injury is alleged some negligence of the defendant must be shown which directly contributed to the injury. Such showing may be made either by direct or circumstantial evidence. But in every case the burden of proof resting upon the plaintiff must be met and sustained to warrant a recovery.
When the evidence in this case is analyzed and considered in its most favorable light to plaintiff it shows nothing more than that plaintiff ran his boat on a piling in Mangrove Key Channel and that the Florida East Coast Railway Company had placed some piling across the channel about sixteen years prior to the accident. There is absolutely no proof of a substantial character to sustain a finding by the jury that the particular piling with which plaintiff's boat collided in the channel was one of the pilings which the railroad company is alleged to have "unlawfully and negligently left" in the channel in 1912.
Circumstantial evidence is of course sufficient to sustain a verdict for damages in a civil case at law, and where it is complete in its probative value and excludes an hypothesis inconsistent with the theory that defendant committed the wrongful and negligent acts complained of, the verdict of a jury will not be disturbed as being contrary to the evidence. W. O. W. v. Hodges, 72 Fla. 467, 73 So. 347.
The value of circumstantial evidence consists in the conclusive nature and tendency of the circumstances relied upon to establish any controverted fact. Such evidence is always insufficient where assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof. Whetson v. State,31 Fla. 240, 12 So. 661.
In this case there is no showing that the piling which caused the injury was similar to the type of piling used by the railroad sixteen years before, nor is there any attempt to show that the place of the accident was a place in which *Page 18 only the defendant railroad company had ever placed any piling. In short, the circumstances — mere placing of piling by the railroad years before the accident — standing alone is not sufficient to warrant the finding by the jury that it was a piling placed by defendant and no one else which damaged plaintiff's boat.
The motion for a new trial should have been granted because the evidence adduced was not sufficient to sustain the verdict. On another trial this insufficiency may be capable of being corrected.
Reversed.
WHITFIELD, P.J., AND TERRELL, J., concur.
BUFORD, C.J., AND ELLIS, J., concur in the opinion and judgment.
BROWN, J., not participating.
ON REHEARING. Order entered November 16, 1931.