I disagree with the majority upon the first question discussed in the prevailing opinion, namely, the sufficiency of the evidence to make a case for the jury on the question of negligence of the appellant. Upon that issue, I am of the opinion that the verdict should not be allowed to stand.
Respondent's case is predicated upon two grounds of negligence: (1) That appellant failed to furnish a ladder for the use of Archibald Sangster in getting into the upper berth of his stateroom, or to notify him that such ladder was aboard the vessel and available for his use; and (2) that appellant negligently permitted the berth to be in an unsafe and unseaworthy condition and not fit for the use for which it was designed and provided, in that the guard rail on the upper berth was left in an insecure, unsafe and dangerous condition, so that it gave way when the passenger attempted to enter the berth.
It was, of course, incumbent upon respondent affirmatively to prove, by a fair preponderance of the evidence, that appellant was negligent in one or both of the particulars alleged, and that such negligence was the proximate cause of the injury. *Page 361
Some facts, additional to those stated in the majority opinion, and the logical inferences to be drawn therefrom, should be given.
The deceased, Captain Archibald Sangster, was a retired master mariner who had for many years commanded large freight and passenger vessels sailing to all parts of the world. He had also been an officer in the British navy. He was, therefore, generally familiar with ships and their equipment.
The stateroom occupied by Captain Sangster on the steamer "Iroquois" was fitted with two berths. The distance from the floor of the stateroom to the lower margin of the rail of the lower berth, at its center, was one foot, three inches; the corresponding distance from the same point to the bottom member of the upper berth was four feet, one inch.
The steamer carried six ladders which were in charge of the steward and were available for use by the passengers. The staterooms were equipped with electric call bells, by means of which service to passengers could be supplied at their convenience.
At about one p.m. of August 16, 1934, Captain Sangster, a resident of Victoria, British Columbia, arrived in Seattle aboard a Canadian Pacific passenger boat. En route, he had met a man with whom he had a casual acquaintance. The two men spent the afternoon together in Seattle attending the races with a party of Captain Sangster's relatives and friends. The two visitors from Victoria each had four glasses of beer, "race track size," during the afternoon. Leaving the races, the party stopped at a liquor store and then proceeded to the Dog House restaurant, where they arrived at about 7:15 p.m. They began their dinner about 9:45 p.m. and finished it about 11:15 p.m. They then repaired to the home of Captain Sangster's relative, where gin and whiskey were *Page 362 served, but, according to the testimony, which was incapable of rebuttal, the captain drank nothing at that time. However, one of the party presented him with a bottle of whiskey, which he took with him to the boat.
Sangster and his acquaintance boarded the "Iroquois" about midnight. After being assigned to their stateroom, Sangster's companion at once retired and, according to his story, did not awaken until about five a.m. Sangster did not retire. At about two a.m., the night saloon man found him near the purser's office and accompanied him back to his stateroom. At about 3:30 a.m., the saloon man saw him sitting in a chair in the hallway, in a dazed condition, and again escorted him to his stateroom. At four a.m., the same employee saw him in the corridor and again took him back to his stateroom, this time suggesting to him that he had better get some sleep. At a little after five o'clock, this same employee heard groans from the captain's stateroom and immediately entered. Other employees of the boat were summoned.
When Captain Sangster was found, he was lying on the floor of the stateroom and was fully dressed; his berth had not been disturbed. On the floor near him was a whiskey bottle. Some one had vomited over the floor and in the wash basin, and the fumes of liquor were strong. A physician, called as a witness by respondent, testified that he saw Captain Sangster in his stateroom at about 6:30 a.m., after the accident, and that he then smelled of liquor and gave evidence of being intoxicated.
The only evidence with reference to the condition of the guard rail prior to the time of the accident was given by appellant's witnesses. Their testimony was to the effect that the stateroom was periodically and thoroughly inspected, that it had been inspected a day *Page 363 or two before the accident and that the guard rail was then securely in place; moreover, that, on the night of the accident, the rail was in place up to the time when Sangster was last seen before sustaining his injury. There is no contention that the rail was broken or bent, but merely that it was out of place.
From the facts above narrated, I do not see how anyone can escape the conclusion that Captain Sangster was intoxicated. At any rate, it can not be said that it is more probable that he was not. While this, of course, would not constitute a defense to negligence, if such there was, it at least dissipates the conclusion that Captain Sangster was acting as a normal man while in his stateroom.
At this point, we are left wholly to conjecture as to how the accident occurred. Did Captain Sangster sustain his injuries because of a fall while in a drunken stupor? Did he himself, in attempting to get into the berth, lift the rail from its fastenings, as he easily could have done? Had he already mounted into his berth and then suddenly taken a notion to get out again for the purpose of leaving his stateroom, as he had done several times before? Did he roll out of his berth after he had gotten into it? Or had he and his companion had some altercation regarding the occupancy of one or the other of the two berths, as a result of which he fell or was knocked over? The evidence was that, when he was found, he was conscious and was kicking at the lower berth occupied by his companion.
"The whims which seize and control intoxicated men and the accidents that are liable to occur to them are so manifold that it would be the merest guesswork to undertake to account for the location of the body of the deceased at the point where it was found as shown by the record in this case." Armstrong v.Cosmopolis, 32 Wn. 110, 72 P. 1038. *Page 364
With reference to the matter of supplying a ladder, the evidence shows that it was available and subject to the captain's demand. It was not the duty of the appellant to keep a ladder in the stateroom, whether the occupants wanted it or not. It was the captain's duty to ask for it, if he felt that he needed it. The appellant's employees had shown him every consideration, and it was not their duty to put him to bed against his will. The condition of the room at 6:30 a.m. indicates very clearly what the captain had been doing earlier in the morning. Unfortunate as the result was, it was, obviously, the consequence of his own condition brought on by himself, and not attributable to any proven negligence of appellant.
It is a primary rule of circumstantial evidence that the circumstances should not only concur to show that the thing charged happened in a particular way, but that they are inconsistent with any other rational conclusion. If there is nothing more tangible to proceed upon than two or more conjectural theories, one or more of which is sufficient to support a charge of negligence and the others are not, then it is for the plaintiff to exclude, by the greater weight of the evidence, the operation of those causes that do not give ground for liability. Parmelee v. Chicago, M. St. P.R. Co., 92 Wn. 185,158 P. 977.
In the attempt to escape this rule, the majority assert two principles as controlling the case. The first assertion is that a plaintiff, in order to relieve the case of its speculative features, is not required to prove negligence beyond a reasonable doubt. In support of that assertion two cases are cited and relied on: St. Germain v. Potlatch Lumber Co., 76 Wn. 102,135 P. 804, and McGinn v. North Coast Stevedoring Co.,149 Wn. 1, 270 P. 113. In each of those cases, there was direct evidence of a defect in the particular *Page 365 appliance, from which negligence and the consequent injury could be reasonably inferred. In the case at bar, however, there is no proof of any defect or of any negligence, but merely an inference thereof. From a combination of circumstances which support many divergent theories, an inference of negligence is drawn, to the exclusion of other inferences, equally sound and upon which no liability could be predicated. All of the circumstances in this case taken together can be converted into a definite result only by the introduction of surmise and conjecture.
The other assertion in the majority opinion is that the facts shown raise a presumption of negligence, thereby casting upon the appellant the burden of showing that the giving way of the rail was not due to its negligence. The following cases are cited in support of the pronouncement: Lane v. Spokane Falls N.R. Co.,21 Wn. 119, 57 P. 367, 75 Am. St. 821, 46 L.R.A. 153; Wodnikv. Luna Park Amusement Co., 69 Wn. 638, 125 P. 941, 42 L.R.A. (N.S.) 1070; Hayes v. Staples, 129 Wn. 436,225 P. 417; Highland v. Wilsonian Inv. Co., 171 Wn. 34,17 P.2d 631; Scarpelli v. Washington Water Power Co., 63 Wn. 18,114 P. 870.
In the Lane case, there was a collision between a railroad engine and a passenger car, in the aisle of which the plaintiff was standing. As a result of the collision, the passenger was injured. In such case, it was, of course, the duty of the railroad company to absolve itself of the negligence shown by the occurrence, since no question of the negligence of the passenger could possibly arise under the circumstances.
In the Wodnik case, it was shown that the head of a mallet used in connection with a striking machine in an amusement park flew off while actually being used by a patron of the park. In other words, it was *Page 366 shown that the person injured was using the device in the way that it was intended to be. There was, and could be, no inference whatever that the patron had improperly used the device. The court said:
"It is plain that had the head of the mallet been securely fastened to the handle, the accident would not have happened, no matter where the respondent grasped the handle. It is equally plain that he was not guilty of contributory negligence. He had no reason to assume that the head of the mallet would fly off. In fact, as we have seen, he had the right to assume that it would not. There was no evidence that he was not using the mallet as it was intended to be used."
In the Hayes case, the operator of an automobile stage, while rounding a curve, drove on the left side of the highway and in abruptly turning to his right side ran off the road into a ditch, injuring a passenger. The court said:
"The rule is general that a plaintiff makes out a primafacie case of negligence against a common carrier when he shows that he was injured while riding for hire and in the usual manner on a conveyance furnished by the carrier, and that the injury was caused by some defect in or management of the conveyance over which the carrier had exclusive control."
In that case, there was positive evidence to the effect that the accident happened through mismanagement of the driver; hence the verdict was in no sense speculative or conjectural.
In the Highland case, the injury to the plaintiff was proximately caused by the blowing out of a plug or nipple of the crank-case of an ice machine. There was evidence to the effect that the nipple was old, rusty and cross-threaded. The cause of the accident having been shown, and the device being under the exclusive control of the defendant, and the accident being such as in the ordinary course of events does not happen, *Page 367 it called for explanation by the defendant that the accident did not result from want of care on its part. In the case at bar, it was not shown how the accident occurred. On the contrary, from the mere fact of injury, the jury was allowed to speculate as to how it happened.
The Scarpelli case has no bearing whatever upon the case before us, and the rule of law deduced therefrom has no application to the facts involved here. In the first place, the result of the Scarpelli case was just the contrary to what is contended for here. In the next place, the plaintiff there had made a prima facie case of negligence by evidence tending to show how the accident had actually happened, which the defendant was rightly called upon to explain. In the case before us, there is no evidence as to what caused the injury. It is simply assumed that, because Captain Sangster was injured, his injuries must have occurred by reason of negligence attributable to the appellant.
The difficulty with the prevailing opinion is that it begs the question in this case. Its reasoning is that, since Captain Sangster sustained an injury on the boat in a manner that might be accounted for in one of many ways, therefore it became the duty of the appellant to show that it did not occur through its negligence.
The correct rule is as announced in the cases above cited, that, when a thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. But in this case, it was not shown what caused the injury, nor can it be said that the accident was such as in the ordinary *Page 368 course of things does not happen if those who have the management use proper care. There was no evidence that there was any defect in the rail itself, or that it had given way by reason of any negligence on the part of the appellant. How it came to be out of place four hours after Sangster and his companion entered the stateroom, is a matter that no one can tell from the evidence adduced. The inferences at best are balanced, and, in my opinion, point to the act or conduct of some one occupying the stateroom.
I therefore dissent.
TOLMAN, BEALS, and ROBINSON, JJ., concur with STEINERT, C.J.