I did not concur in the divisional opinion, and I am unable to concur therein after further enlightenment from the argument in Court en Banc. I find no fault with the principles of law announced in respondents' opinion; but I think the application of those principles, made by respondents to the facts at bar, is in conflict with the decisions of this court upon similar facts.
Respondents held that the verdict of the jury may not rest on conjecture or speculation, yet I think that is necessarily the only basis for the verdict of the jury in this case. From the circumstance that the deceased's body was found lying in the street at a point where it would likely be thrown from the truck as it turned into Sibley Street, the conclusion as a fact that deceased was thrown off upon the pavement when the truck made the turn and as the result thereof was justified. But, that the jar or jerk, caused by the wheel of the truck dropping into a hole in Kingshighway from twenty-eight to thirty-eight feet from the point where deceased's body was found and from eight to eighteen feet north of the street intersection, contributed to the fall of the deceased, is mere speculation and conjecture. In ruling that the jury could find that the hole in the street was a contributing cause to deceased's death, respondents have contravened the rule firmly established by the decisions of this court and fully recognized by them in their opinion that a finding by the jury cannot be allowed to rest upon speculation or conjecture. *Page 123
I think respondents' opinion also violates our well established rule that a fact necessary to be proven cannot be established by building inference upon inference. The jury had to find that the jerk or jar contributed to deceased's fall and death, before it could return a verdict against relator. Yet, no one saw the effect upon deceased when the right hind wheel of the truck dropped into the hole in the street. It was necessary for plaintiff below to show that deceased lost his balance as the result of the wheel dropping into the hole and that he had not regained his balance before the centrifugal force, upon the turn to the right, began to operate on his body.
Assuming that it was permissible to draw the inference that deceased did not anticipate the jerk and therefore lost his balance when the jerk occurred, the further inference must be drawn that deceased did not recover his balance before the truck started to turn into Sibley Street and centrifugal force began to affect his equilibrium. There is no justification for an inference that the turn to the right had started when the jerk occurred, because the opinion itself recites proof to the contrary, to-wit, that the truck was turning slightly to the left at the time the wheel dropped into the hole and was moving toward the center of Kingshighway in order to make the turn into Sibley Street.
Therefore the finding that the hole in the street and the jerk and jar, resulting when the wheel dropped into it, contributed to deceased's death is necessarily established by building inference upon inference. It is unnecessary to cite cases announcing the rule forbidding proof by such means. Respondents fully recognized the rule, but, in my judgment, they have failed to make proper application of the rule to the facts in this case and, in so failing, have put their opinion in conflict with controlling decisions of this court.
For the reasons stated, I think the opinion should be quashed and, from the contrary conclusion reached by the majority, I respectfully dissent.