Aristocrat Dairy Products Co. v. George

I think the evidence fails to show that the negligence of the driver was the proximate cause of the death of Mrs. George's son. From Louis Hood's testimony and his reference to the photographs in the record, it appears that he was on the opposite side of the road from the truck and trailer when the misfortune occurred. He did not state the cause of theinjury except by way of conjecture. He testified: "I could see him and see the tractor as it approached. I seen the tractor gotup even with him and the next thing I seen Glen [petitioner's son] was wound up in the dollies under the trailer." Ordinarily it would be a question for the jury to choose between a witness's contradictory statements, but in this case it is an inescapable conclusion that the witness did not and could not have seen how the misfortune occurred from where he was standing, and that he didn't intend so to testify. Assuming for the sake of argument that the petitioner's son was standing at a point at right angle to the witness; that is, directly in front of the witness across the road, and *Page 499 that the space, as indicated from the photographs in the record, between the tractor and trailer was approximately three feet, at the estimated speed of the truck of twelve miles per hour, the witness would have been enabled to glimpse the deceased for one sixth of one second between the time the tractor passed him and the trailer struck the deceased, thus whether the deceased had attempted to board the tractor or was first struck by the tractor was obliterated from the view of the witness. As a matter of fact the boy was not standing at right angle to the witness, and it is, therefore, shown that the witness had not even a sixth of a second to observe what occurred. It was impossible for him to see what part of the tractor or trailer hit the boy or just what caused him to fall or be knocked under the trailer. It is just as reasonable to say that the boy attempted to board the tractor while it was in motion and that he lost his footing. The cause of the injury is based solely on circumstantial evidence and the answer as to the proximate cause is just as consistent with accident or the boy's negligence as it is with negligence of the driver. So much for the striking of the boy. Furthermore, there is no evidence that the driver was negligent in continuing to drive the truck. There is not one iota of evidence that he knew the boy was injured or in danger, or had any reason to suspect it. The only eyewitness testified only that he saw the deceased before the truck reached him and saw him after he was under the trailer. This situation makes the proximate cause of the injury a pure question of circumstantial evidence, and under the well-known principle that where the evidence is circumstantial and is equally consistent with two opposing theories, one of liability and one of non-liability, a verdict for the party having the burden of proof is unauthorized.