(dissenting): It is quite correct, of course, that a
civil action for damages can be sufficiently maintained by circumstantial evidence. But it cannot be sufficiently maintained by guess, surmise, or mere conjecture. (Ogg v. Ogg, 124 Kan. 443, 446, 260 Pac. 647.) There was no evidence, direct or circumstantial, which tended to show that defendant or anybody in its employ laid the *536plank across the sidewalk. And certainly the probability that somebody in defendant’s employ had laid the plank there was not the only reasonable conclusion deducible from the circumstances. I accept as true the plaintiff’s own testimony that earth presumably from defendant’s excavation work had been trucked across the sidewalk, notwithstanding that testimony was strongly refuted by the physical evidence that the “spoil bank” of earth taken from the excavation was placed on the south side of it, and that it would have served no purpose of defendant to truck it northward across the sidewalk where plaintiff was injured.
The jury had to guess that defendant had placed that plank across the sidewalk to facilitate the trucking. The jury also had to assume that the plank had been left on the sidewalk when defendant’s employees quit work for the day — probably 2% hours before the accident happened, at that time of year. The jury also had to assume that no other person placed the plank across the sidewalk between defendant’s quitting time and the time when plaintiff came along and tripped on it at 7:30 p. m. This calls for too many guesses, inferences and assumptions to support the judgment. In Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, there was an appeal to this court from a verdict and judgment for damages for personal injuries. The main question was the sufficiency of the evidence to support the verdict. In holding that it did not, this court used language and cited cases which are highly pertinent here:
“We find nothing in the evidence but speculation upon which to predicate liability of defendant. The simple fact that there was a collision and someone was injured is not of itself sufficient to predicate liability. (Zinn v. Updegraff, 113 Kan. 25, 35, 213 Pac. 816; 9 Blashfield Cyclopedia of Automobile Law, 399.) It is familiar law that negligence is never presumed; it must be established by proof. Like any other fact, it may be established by circumstantial evidence. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599.) But the circumstances ‘relied on must be of such a nature and so related one to the other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established.’ (Cornwell v. O’Connor, 134 Kan. 269, 271, 5 P. 2d 861.) ‘A fact is not proven by circumstances which are merely consistent with its existence.' (Canestro v. Joplin-Pittsburg Rld. Co., 135 Kan. 337, 341, 10 P. 2d 902.)
“In Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 Pac. 1103, it was held:
“ ‘A finding of negligence cannot rest on mere conjecture, but must be established by competent proof.’ (Syl. If 1.)
“See, also, Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830, and A. T. & S. F. Rly. Co. v. Toops, *537281 U. S. 351, reversing Toops v. Atchison, T. & S. F. Rly. Co., 128 Kan. 189, 1277 Pac. 57.” (p. 41.)
I therefore dissent.