The inference that there was a defect in the mechanism of the seat seems to me to lack support in the evidence.
There was no direct testimony to a defect. The plaintiff offered none, and the defendant's evidence was that no defect was found on inspections made before and after the occurrence. The testimony in which any inference of one must find a basis was that, while the bus was at rest, after a full complement of passengers, except for the plaintiff himself, a few ahead of him and one behind, had passed out, the three or four immediately in front of him passing the aisle seat in question without obstruction, he found the seat hanging out between his legs, in such position as to leave only eight inches of the passage-way clear. And he added that it failed to remain up beside the permanent seat when he gave it a shove with his knee. This was as far as his proof of obstruction by a seat went. He said he had a definite impression that the seat dropped, but he did not see it until it was hanging out as he described, and therefore he had no actual evidence to offer on the manner of its coming to that position.
The raising of the back from the seat keeps the whole from folding up against the side, yet there is no testimony as to the position of the back then. Therefore if we may, as I doubt, take the plaintiff's testimony as tending to show that the shove he gave with his knee was such as should have caught a seat up if properly folded together to go up, it remains that the inference of a defective condition could not be drawn without evidence of proper folding at the moment to stay up.
The seat had been folded and raised out of the way of the preceding passengers, either by the passenger who had been sitting on it or by the first to pass it. And it was held in its position, out of the way, until three or four had filed by it. That it should then, while the bus was still motionless, hang out between the legs of the next passenger by reason of some defective working seems to me improbable at the outset. And there are other possibilities *Page 53 left by the evidence. In the moving passengers there were about the seat forces that might well have interfered with its working, brushing against it, perhaps, or even catching in it, and so long as other explanations are possible, there should be no recovery on the basis of any one. Titlebaum v. Pennsylvania R. Co.,167 Md. 397, 405, 174 A. 89. Confirmation of the possibility of other explanations seems to exist in an absence of any complaint by the plaintiff at the time. He did not mention to the driver or any representative of the defendant that he had fallen over the aisle seat. In support of a claim on an accident insurance policy, indeed, he signed a statement that in the jam of the crowded bus he lost his balance and when he attempted to catch himself by grabbing the back of a seat his hand slipped and he fell, twisting his back.