I cannot agree with the majority view. But one issue was submitted to the jury and *Page 1056 that was whether there was negligence on the part of the railroad company in failing to blow the whistle or ring the bell. The verdict of the jury in this case is based solely on the negative testimony of Hugh Patton, the only witness offered by appellee. This witness testified: "Q. Can you tell the jury whether or not before the train ran into the team the whistle blew or the bell rang? A. It didn't blow any whistle. The first time the whistle blew was when it stopped down there about a mile and backed up. . . . Q. And you say it didn't ring any bell? A. I couldn't swear about the bell, but it didn't blow the whistle. Q. You didn't hear any bell? A. No, sir. . . . Q. How far is your house from the railroad track? A. I figure it is about 75 yards. . . . Q. What were you doing on the night of the collision? A. I was there in the house. . . . Q. Did you have the windows and doors closed? A. Yes, sir. . . . A. The whistle didn't blow. Q. The whistle did not blow? A. No, sir, it sure didn't. That is one thing I do know. . . . Q. On the question of the bell, you didn't hear it. It could have been ringing? A. It is like I said while ago. I didn't hear it, but there was nothing to keep me from hearing it."
I understand the rule to be that negative testimony may become substantial and sufficient to support the verdict, but this is so only when the evidence shows that the witness could have heard, or was in a position to hear, the ringing of the bell, if it were ringing at the time. In other words, the effect of the negative evidence of such witness must be that there was in fact, nothing to prevent his hearing the bell had it been rung.
In the instant case, appellant's engineer testified positively that the bell was ringing. A disinterested witness, who resided closer to the point of collision than appellee's witness, Patton, also testified positively that the bell was ringing and that he was in bed in his home at the time.
It seems to me that when we give to appellee's witness, Patton, its strongest probative force, the most that can be said of it is that he did not know whether the bell *Page 1057 was rung or not, for the obvious reason that at the time he was in his home with the doors and windows all closed, and that he answered truthfully when he said: "I couldn't swear about the bell, but it didn't blow the whistle," and further "The whistle didn't blow. . . . That is one thing I do know."
It seems to me that we would be stretching the weight and effect to be given to negative evidence to the breaking point to permit the judgment in the instant case, which is based upon Patton's testimony, to stand. His testimony is not substantial in any sense of the word. To affirm this case, I think it would be necessary for us to adopt the scintilla rule. "We have never adopted the scintilla rule in this state, but have uniformly held that there must be some evidence of a substantial character to uphold a verdict of the jury or the finding of fact made by a court sitting without a jury." The Henry Wrape Company v. Cox, 122 Ark. 445, 183 S.W. 955.
I think the judgment should be reversed and the cause dismissed.
Mr. Justice McFADDIN joins me in this dissent.