I concur in the result but with some misgivings. The facts here are dangerously like those in the Tuttle Case cited, and which the majority opinion attempts to distinguish. The circumstances relied upon to take this case out of the rule recognized in the Tuttle Case, and which is the general rule everywhere, constitutes slender reeds upon which to depend, but they may be sufficient. They consist of the deductions that deceased must have been on the street car on his way home, and that he accidentally rode past his proper alighting place. There is little in the record to support that theory.
In the Michigan case, cited and relied upon, there was evidence that the deceased was actually lost; in fact, it was agreed that such was the case. There is no such evidence or agreement here.
This case does not come squarely within the rule of theDalbey Case; it is rather between the Tuttle and DalbeyCases. In the Tuttle Case there was no evidence at all of any antecedent accident. In the Dalbey Case there was convincing circumstantial evidence to that effect. *Page 547
It seems to me that this case is, perhaps, more nearly within the rule of the Tuttle Case than of the Dalbey Case; but because the jury, the trial judge and the majority of my brethren of this court have seen circumstances, which have the weight of evidence, to distinguish in favor of plaintiff, I concur.