dissenting. It is necessary to resort to circumstantial evidence to establish the proposition, the burden of establishing which is upon the insurance company, that the deceased committed suicide. The rule is well established, even in civil actions, that in order to establish a proposition by circumstantial evidence the facts relied upon must be of such a nature that it is the only conclusion that can reasonably be drawn therefrom; and where the facts relied upon equally sustain either of two conflicting propositions, they establish neither. See authorities collected in Taylor v. State, 44 Ga. App. 387, 417-418 (161 S. E. 793).
The evidence relied upon to establish the proposition that the insured committed suicide consists in certain acts, declarations, and statements of his, indicating despondence and dissatisfaction with life, and that, by inference, he intended to kill himself, and also the physical facts respecting the condition of the body when found, its relation to the track, and the inference drawn therefrom as to the suicidal character of the insured’s death. An intention on the part of the insured to kill himself is found, not in any express intention by him to do so, but only in inferences from his conduct and declarations and statements made by him. An inference of such intention may not be conclusively demanded, and may have been an issuable matter for the jury. But assuming, however, that *544it is conclusively established that the insured had an intention to kill himself, it does not follow that because the physical facts as respects the condition of his body and its relation to the track are consistent with the theory that he put such intention into effect, the inference is demanded that he lay down upon the railroad-track with suicidal intent.
One of the witnesses, a police officer, who observed the body and the head as they lay beside the track in the condition they were in when they were found, testified that, from the position of the body, it appeared that the deceased could have been sitting and had turned around to rest and went to sleep, that he could have have been drunk and gone to sleep, that, from the “looks” of the body, “the indication was just as strong that way as any other way.” While this is merely opinion evidence of the witness, it is nevertheless the inference drawn by him, who is presumably a man of ordinary intelligence, from the physical facts. It at least indicates the inference that a man of average intelligence, as jurors are supposed to be, might draw from these facts. There is evidence that the insured had indulged in intoxicating liquors, and had done so while in. the state of despondency referred to. There is evidence that an empty bottle, which belonged to him and had been in his room and had contained liquor while there, was found near his body by the side of the track. While there is an issue whether this bottle was the one which had been in his room, the evidence is sufficient to authorize the inference that it was the same bottle.
The physical facts with respect to the condition of the body and its relation to the track and the drinking of liquor by the insured, and other circumstances, are as indicative of the accidental death of the insured by being run over by a train after he had fallen on the track while asleep or in a drunken stupor, as that he consciously, either while in a state of sobriety or while under the influence of liquor, and with the intention of ending his life, placed his neck upon the rail, and, while lying there, faded into unconsciousness either from the effects of liquor or from sleep, or lay there in a conscious condition, with the intention of ending his life, and awaited the arrival of the train which ran over him and killed him.
The evidence is silent and contains no facts or circumstances which authorize a finding as to how long the insured had been upon *545the track before he was killed. The evidence certainly does not demand a finding that he lay down on the track before an immediately approaching train and met his death without time for reflection, as is more likely to be the case if he was killed while conscious of his impending fate. When the natural aversion to death which is inherent in all persons, and is sometimes manifested in persons intending self-destruction, is considered, the facts relied upon as circumstances establishing the theory of the suicide of the insured, where it does not appear how long he had lain upon the track before he was killed, should not be construed as demanding a finding that he lay down upon the track with his neck upon the rail, and, while in the possession of his faculties and conscious of what he was doing, lay there a considerable time waiting for death with time to deliberate and contemplate what he was doing.
Were I a juror I would be much inclined to infer, from the evidence, that the insured committed suicide, but, as a reviewing judge passing upon the sufficiency of the evidence to authorize a jury to arrive at a contrary conclusion, I can not conclude that the evidence is insufficient to authorize the verdict which the jury found, and which is necessarily predicated upon the theory that the jury did not conclude, from the evidence, that the insured committed suicide. The evidence does not demand the inference that the insured committed suicide.
The verdict found for the plaintiff, the beneficiary under the policy, against the defendant insurance company, was authorized.