(dissenting).
I must respectfully dissent. It appears to me that, because the first accident was of a magnitude which might have caused death, submission of this case to a jury on the evidence here will invite a greater degree of speculation and conjecture than is permitted by the *453applicable law of Indiana. This, I think, we have no right to do, as the trial judge recognized, even though we might prefer to stretch so-called “reasonable inferences” into the area of speculation.
There is simply no direct or circumstantial evidence indicating which trauma caused the deaths. That the second crash, being the only one in which defendants were involved, was a proximate cause of the death is an essential proposition on which plaintiffs had the burden of procf. Even if it be inferred that both decedents were in the Citroen with seat belts fastened when it was struck by defendants’ vehicle, there is no evidence that they were not already mortally wounded. That the second crash was more violent and spectacular than the first, and even that it almost certainly would have caused death to any occupant of the Citroen, is immaterial, unless it may reasonably be inferred from evidence that such occupants would not have died from injuries received in the first crash. That Mr. Medina, who was thrown from the vehicle at some unknown point during the first accident, and not involved in the sécond, did not die from his injuries, certainly gives rise to no inference whatsoever that others who were not thrown out would have survived it. This is pure speculation.
The fact recognized by the majority opinion that decedents “might have” survived their injuries received in the first crash appears to me to show the unavoidable speculation on that point without benefit of inference from the record.
I do not believe it is necessary that a judge or reviewing court be “persuaded” that the injuries in the first accident were fatal, or that it is a question of which type of accident more probably would produce fatal injuries; it is the legal prerequisite to recovery that plaintiffs produce some evidence that the first accident injuries were not fatal before they can impose liability on the defendants here for such fatalities. This they did not do.
With deep respect for the so-called Cartwright standard on directed verdicts (288 F.2d at 198) and for my judicial superiors on this panel, I think the well developed law of Indiana on inferences in relation to burden of proof required a directed verdict for defendants here. See Prudential Insurance Company of America v. Van Wey, 223 Ind. 198, 59 N.E.2d 721 (1945); Orey v. Mutual Life, 215 Ind. 305, 19 N.E.2d 547 (1939); Montgomery v. Polk Milk Company, 118 Ind.App. 433, 79 N.E.2d 108 (1948); Moorman Mfg. Co. v. Barker, 110 Ind.App. 648, 40 N.E.2d 348 (1942); New York Central v. Green, 105 Ind. App. 488, 15 N.E.2d 748 (1938). Krohn v. Shidler, 140 Ind.App. 175, 221 N.E.2d 817 (1966), simply is not authority to the contrary. Accordingly, I would affirm.