On Petition for Rehearing. In the circuit court the plaintiff Ulis Sutton, as administrator of Jim Sutton, deceased, recovered a judgment, on the verdict of a jury, for $2,000 and costs, and the defendant railway appealed in error to this court, where, on a former day, the assignments of error were sustained, the judgment of the circuit court was reversed, the verdict of the jury was set aside, and the plaintiff's suit was dismissed at his cost. (The opinion was rendered by a majority of this court — Judge Crownover dissenting.) *Page 48
In due season, the plaintiff filed a petition for a rehearing in which it is asserted that the decision of this court was based on "certain erroneous conclusions of fact" stated in the opinion filed. These alleged erroneous conclusions of fact are set forth in five numbered specifications in the petition to rehear.
The first statement in the opinion which the petitioner thus questions is that "Arms Spring" at which the deceased, Jim Sutton, appeared about 4:30 o'clock in the afternoon of July 23, 1935, is "in the vicinity of the station at Anderson."
The undisputed proof shows that Sam Arms Spring is "in a couple of miles of Anderson." It does not follow that it is not in the "vicinity" of Anderson. The word "vicinity" is a relative term, and there is nothing erroneous or inaccurate in referring to a spring or a home situated two miles from a railroad station as being in the vicinity of such station.
The second statement which the petitioner says is erroneous is contained in an excerpt from the opinion of the majority of this court, which excerpt is as follows:
"After remaining at Arms Spring for a half hour or a little more on the occasion above mentioned, Sutton and the witness Henry Bradford left there together and walked north on the railroad track from Anderson Depot, passing the place where Sutton's body was later found, to a private road crossing over the railroad track, known as Pittman's Crossing, approximately 1,950 feet north of Anderson Depot, where they walked west and southwest along Pittman's private road for approximately 300 feet to a gate near Pittman's house, which opened into a public road, described in the record as an `unimproved wagon road.'"
Petitioner says, by way of criticism of the excerpt last quoted, that "Jim Sutton and Bradford were not down at Anderson, they did not travel north from Anderson towards Sherwood, and they did not pass the place where Sutton's body was later found," but that when they left Sam Arms Spring they walked down the highway a short distance towards Anderson, then got on the railroad north of Pittman's Crossing and walked the railroad, going towards Anderson, to Pittman's Crossing, where they left the railroad.
After a re-examination and careful analysis of the evidence, we think the latter criticism of our findings is just; that is to say, Sutton and Bradford, in reaching Pittman's Crossing during the afternoon of July 23rd, did not walk "north on the railroad track from Anderson Depot, passing the place where Sutton's body was later found," but walked south on the highway from Arms Spring for a distance not definitely shown in the record, and then got on the railroad track north of Pittman's Crossing and walked south on the railroad track to Pittman's Crossing, where they left the railroad. *Page 49
We may say, however, that there is evidence (which evidently misled this court on our former hearing) from the witnesses upon whom petitioner relies, from which evidence it could be reasonably inferred that Sutton and Bradford went south on the highway from Arms Spring to Anderson and thence north on the railroad track to Pittman's Crossing. Sam Arms says that when Sutton and Bradford left his (Arms) Spring, they were "not on the railroad," but "going down the highway in the general direction of Anderson." Henry Bradford states that he first met up with Sutton at Sam Arms Spring and was with him "from Mr. Sam Arms Spring down to the tool house there at Anderson, or above the tool house." These statements of Arms and Bradford indicate that Sutton and Bradford walked south on the highway to or near the tool house at Anderson and then got on the railroad track and walked north to Pittman's Crossing; and we so found in our former opinion. But petitioner calls attention to Bradford's statement elsewhere in his testimony that when he and Sutton left Arms Spring they "went down the highway a little distance, then got on the railroad, — it was nearer, you know, the way we were going — we got on the railroad and went down to Mr. Forrest Pittman's Crossing."
We now find, as contended by petitioner, that Sutton and Bradford did not walk north on the railroad from Anderson to Pittman's Crossing, but that they walked south on the railroad track to Pittman's Crossing. In order to reconcile this conclusion with Bradford's statement that he was with Sutton from Arms Spring "down to the tool house at Anderson, or above the tool house," it is necessary to assume that when Bradford said "or above the tool house," he referred to the place on the side of the mountain where he left Sutton at the "fork" of the paths.
The third criticism of our findings is that the conclusions of fact stated in an excerpt from our opinion are erroneous, which excerpt is as follows:
"The record affords no suggestion of an explanation of the return of the deceased to the railroad track after he traveled over his usual route along the railroad track, passing the place where his body was later found, to Pittman's crossing and thence to the junction of the Bradford path with the path leading to his (Sutton's) home, where Bradford and Jesse Curtis left him."
As we have hereinbefore pointed out, the finding that "he (Sutton) traveled over his usual route along the railroad track, passing the place where his body was later found," is erroneous; but, with these words elided, we think the record sustains the remainder of the excerpt quoted in the third specification of the petition, supra, and the excerpt thus quoted is correct in so far as it states that "the record affords no suggestion of an explanation of the return of the *Page 50 deceased to the railroad track after he traveled . . . to Pittman's Crossing and thence to the junction of the Bradford path with the path leading to his (Sutton's) home, where Bradford and Jesse Curtis left him."
Through his remaining specifications (the fourth and fifth) the petitioner challenges as erroneous the statements in an excerpt from the majority opinion of this court as follows:
"His only practical route to reach the railroad track from the point where Jesse Curtis left him was to retrace his steps to the Pittman crossing. However, according to the plaintiff's undisputed proof, the terrain was so rough and precipitous on the west side of the railroad, that it would have been practically impossible for Sutton to have reached the track (in the night time) at or in the vicinity of the place where his body was found by any other route than via Pittman's crossing."
Upon a re-examination of the record, we have found no evidence which would justify us in retracting or modifying the statements made in the excerpts from our opinion which are challenged by petitioner's fourth and fifth specifications, supra. We must take the record as we find it, and without "the additional advantage" enjoyed by the learned and able counsel for plaintiff, "of having been upon the actual scene of the accident, and of having personally examined the lay of the land."
The correction of our erroneous finding that Sutton and Bradford walked north on the railroad track from Anderson Depot to Pittman's Crossing, passing the place where Sutton's body was later found, does not remove from the field of surmise, speculation, and conjecture the finding of the jury that Sutton appeared as an obstruction upon the track in front of the train and was, in that manner, struck by the train and killed.
One aspect of the petition for a rehearing rather tends to emphasize the thought that the verdict is based on speculation and conjecture; and that is the contrast between petitioner's theory in the brief filed in support of his petition to rehear, and his theory in his former brief and argument.
In plaintiff's former brief, the presence of human vomit on the railroad track was the main fact upon which plaintiff predicated his contention that his intestate was an obstruction on the track in front of the train. He said: "No reasonable mind could arrive at any conclusion except the fact that plaintiff's decedent was on the railroad track vomiting when a northbound train hit him, etc." Later, in the same brief, he repeated, in substance, the same theory, and added: "Plaintiff insists no other reasonable theory could be advanced."
In plaintiff's brief in support of his petition to rehear it is said that, from the fact that deceased's shoes were on the track, "we can *Page 51 indulge in the inference, or reasonable presumption, that deceased was removing his shoes and the train struck him while he was so doing and while he was an obstruction on the track. To attempt to explain the matter in any other way would lead us into the realm of the wildest imaginations and the most unreasonable and unnatural conclusions of the facts which are established in this case."
We do not wish to be understood as saying that consistency in the matter of inferences to be drawn from proven facts must be maintained by parties and their counsel at their peril in all stages of a case. The point we have in mind is that when counsel of the recognized learning in the law, and well-known skill and ability as a practitioner as the attorney for the plaintiff in the instant case, so radically alters his views with respect to which particular facts in evidence afford inferences that the deceased was an obstruction on the track in front of the train, it suggests the probability of a conclusion based on surmise, speculation, and conjecture.
This opinion will operate as a correction of the finding of our former opinion in the one particular hereinbefore pointed out as erroneous; but in all other respects the petition for a rehearing is denied and dismissed, at the cost of the petitioner.
DeWitt, J., concurs.
Crownover, J., dissents for the reasons stated in his former dissenting opinion.