I agree to all that is said in the opinion prepared by my learned brother Commissioner COOLEY, except the conclusion reached, that the evidence is sufficient to show the death of Teroy to have been caused by the blows struck by Privett rather than by being hit by the automobile. The evidence was ample to convict appellant and his confederates of a felonious assault. The punishment assessed in this case, seven years' imprisonment in the penitentiary, may have been well merited, but we are writing the law for the guidance of future trials. The facts proven in this case, pertaining to the injuries sustained by the deceased, are correctly revealed in the opinion. Briefly they are: After the deceased had been assaulted he was able to walk without much difficulty. In fact he did walk about a mile and a half. He was able to talk intelligently, because he asked for help at two different houses along the highway. The evidence justified the inference that he had suffered cuts and bruises at the hands of appellant and his associates. He so stated when he asked for help. He complained that he had been beaten and cut and was bleeding. Within a few minutes after he had asked for aid the second time, and as he was going down the highway, he was struck by a car estimated to have been traveling at a speed of from thirty to fifty miles per hour. Deceased, thereafter, never spoke again. He died the next day. Witnesses stated that the deceased attempted to talk but could not be understood. It was said he just mumbled. After he was struck by the car the following injuries were found upon his head: He had a hole in his head which penetrated to the skull; he had a broken jaw; his nose was caved in and fractured; teeth were knocked out; there was a severe fracture of his skull and his tongue *Page 306 was very badly cut. Could this man with all of the above injuries have walked as he did, and could he have talked intelligently as the State's witnesses said he did when asking for help? That certainly seems highly improbable. A significant fact is, that he did walk and talk, in fact he aroused Mrs. Pelt by "hollering," before he was struck by the car, but thereafter never spoke again and was unable to stand or to recognize anyone. That sudden change in his condition speaks more loudly as to the cause of his severe injuries than all the opinions of doctors and witnesses. Who can say that the striking by the car was not the cause of the most serious injuries, such as the fracture of the skull, jaw and nose? In civil cases, in actions for damages for personal injuries, if the evidence leaves the question uncertain as to one of two causes of the injury, for one of which the defendant is liable, the other not, a recovery will be denied. In this case who can say, and what evidence is there that the deceased could and would not have lived if he had not been struck by the car? I therefore must respectfully dissent. Tipton, and Douglas,JJ., concur.