1. A plaintiff in an action for wrongful death cannot recover by
proof of facts from which it may be inferred that the injury
resulted from an event attributable to the defendant's negligence
if the same facts give equal support to an inference that it
resulted from another and different event not so attributable. P.
288 U. S.
339.
2. When the plaintiff has failed to sustain his burden of proof,
because, as to the existence of a vital fact, two equally
justifiable inferences may be drawn from the facts proven, one for
and the other against him, the mere conclusion of a witness as to
which
Page 288 U. S. 334
inference should be drawn cannot resolve the doubt in his favor.
P.
288 U. S.
340.
3. Where the plaintiff's right of recovery depends upon the
existence of a particular fact being inferred from proven facts,
such inference is not permissible in the face of the positive and
otherwise uncontradicted testimony of unimpeached witnesses,
consistent with the facts actually proved, showing affirmatively
that the fact sought to be inferred did not exist. P.
288 U. S.
340.
4. A brakeman who was riding a cut of cars moving on a
distributing track of a large freight yard, in a switching
operation, fell and was killed, and the case against the company
depended on whether the accident resulted from a collision by a
second cut from behind. Three employees who were on the second cut
testified positively that there was no collision or contact between
it and the first one, and in this they were corroborated by every
other employee who was in a position to see. One witness alone, who
was standing fifty feet from the track and nine hundred feet from
the spot where the body was found, testified that he heard a crash
-- a thing not unusual in the yard, only "extra loud" -- which was
not sufficient to attract his attention, and did not cause him to
turn at once, but that, shortly thereafter, he did turn and saw the
two strings of cars moving together, with the deceased, who had
been visible before, no longer in sight.
Held that the
witness' further statement that the crash was caused by a collision
of the two strings in question was not testimony to a fact, but
merely an inference or conclusion of his own, and that the manifest
impossibility of telling by sight, from the place where he was,
whether the cars were moving in contact, made his testimony on that
point incredible. P.
288 U. S.
342.
5. In a personal injury case, verdict should be directed for the
defendant if the evidence for the plaintiff is so insufficient that
a verdict in his favor would be improper and must be set aside on
motion for a new trial. P.
288 U. S. 343.
6. The scintilla rule has been definitely and repeatedly
rejected so far as the federal courts are concerned; the verdict
cannot rest on mere speculation and conjecture. P.
288 U. S.
343.
59 F.2d 986 reversed.
District Court affirmed.
Certiorari, 287 U.S. 589, to review the reversal of judgment on
a verdict directed in favor of the railroad
Page 288 U. S. 335
company in an action for wrongful death, under the Employers'
Liability Act.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is an action brought by respondent against petitioner to
recover for the death of a brakeman alleged to have been caused by
petitioner's negligence. The complaint alleges that the deceased,
at the time of the accident resulting in his death, was assisting
in the yard work of breaking up and making up trains and in the
classifying and assorting of cars operating in interstate commerce;
that, in pursuance of such work, while riding a cut of cars, other
cars ridden by fellow employees were negligently caused to be
brought into violent contact with those upon which deceased was
riding, with the result that he was thrown therefrom to the
railroad track and run over by a car or cars, inflicting injuries
from which he died.
At the conclusion of the evidence, the trial court directed the
jury to find a verdict in favor of petitioner. Judgment upon a
verdict so found was reversed by the Court of Appeals, Judge Swan
dissenting. 59 F.2d 986.
That part of the yard in which the accident occurred contained a
lead track and a large number of switching tracks branching
therefrom. The lead track crossed a "hump," and the work of car
distribution consisted of pushing a train of cars by means of a
locomotive to the top of the "hump," and then allowing the cars, in
separate strings, to descend by gravity, under the control of
Page 288 U. S. 336
hand brakes, to their respective destinations in the various
branch tracks. Deceased had charge of a string of two gondola cars,
which he was piloting to track 14. Immediately ahead of him was a
string of seven cars, and behind him a string of nine cars, both
also destined for track 14. Soon after the cars ridden by deceased
had passed to track 14, his body was found on that track some
distance beyond the switch. He had evidently fallen onto the track
and been run over by a car or cars.
The case for respondent rests wholly upon the claim that the
fall of deceased was caused by a violent collision of the string of
nine cars with the string ridden by deceased. Three employees,
riding the nine-car string, testified positively that no such
collision occurred. They were corroborated by every other employee
in a position to see, all testifying that there was no contact
between the nine-car string and that of the deceased. The testimony
of these witnesses, if believed, establishes beyond doubt that
there was no collision between these two strings of cars, and that
the nine-car string contributed in no way to the accident. The only
witness who testified for the respondent was one Bainbridge, and it
is upon his testimony alone that respondent's right to recover is
sought to be upheld. His testimony is concisely stated, in its most
favorable light for respondent, in the prevailing opinion below by
Judge Learned Hand, as follows (p. 986):
"The plaintiff's only witness to the event, one Bainbridge, then
employed by the road, stood close to the yardmaster's office, near
the 'hump.' He professed to have paid little attention to what went
on, but he did see the deceased riding at the rear of his cars,
whose speed when they passed him he took to be about eight or ten
miles. Shortly thereafter, a second string passed which was shunted
into another track, and this was followed by the nine, which,
according to the plaintiff's theory, collided
Page 288 U. S. 337
with the deceased's. After the nine cars had passed at a
somewhat greater speed than the deceased's, Bainbridge paid no more
attention to either string for a while, but looked again when the
deceased, who was still standing in his place, had passed the
switch and onto the assorting track where he was bound. At that
time, his speed had been checked to about three miles, but the
speed of the following nine cars had increased. They were just
passing the switch, about four or five cars behind the deceased.
Bainbridge looked away again, and soon heard what he described as a
'loud crash,' not, however, an unusual event in a switching yard.
Apparently this did not cause him at once to turn, but he did so
shortly thereafter, and saw the two strings together, still moving,
and the deceased no longer in sight. Later still, his attention was
attracted by shouts, and he went to the spot and saw the deceased
between the rails. Until he left to go to the accident, he had
stood fifty feet to the north of the track where the accident
happened, and about nine hundred feet from where the body was
found."
The court, although regarding Bainbridge's testimony as not only
"somewhat suspicious in itself, but its contradiction . . . so
manifold as to leave little doubt," held, nevertheless, that the
question was one of fact depending upon the credibility of the
witnesses, and that it was for the jury to determine, as between
the one witness and the many, where the truth lay. The dissenting
opinion of Judge Swan proceeds upon the theory that Bainbridge did
not testify that, in fact, a collision had taken place, but
inferred it because he heard a crash and because thereafter the two
strings of cars appeared to him to be moving together. It is
correctly pointed out in that opinion, however, that the crash
might have come from elsewhere in the busy yard, and that
Bainbridge was in no position to see whether the two strings of
cars were actually together; that Bainbridge repeatedly said he
was
Page 288 U. S. 338
paying no particular attention, and that his position was such,
being 900 feet from the place where the body was found and less
than 50 feet from the side of the track in question, that he
necessarily saw the strings of cars at such an acute angle that it
would be physically impossible even for an attentive observer to
tell whether the forward end of the nine-car cut was actually in
contact with the rear end of the two-car cut. The dissenting
opinion further points out that all the witnesses who were in a
position to see testified that there was no collision; that
respondent's evidence was wholly circumstantial, and the inferences
which might otherwise be drawn from it were shown to be utterly
erroneous unless all of petitioner's witnesses were willful
perjurers. "This is not a case," the opinion proceeds,
"where direct testimony to an essential fact is contradicted by
direct testimony of other witnesses, though even there it is
conceded a directed verdict might be proper in some circumstances.
Here, when all the testimony was in, the circumstantial evidence in
support of negligence was thought by the trial judge to be so
insubstantial and insufficient that it did not justify submission
to the jury."
We thus summarize and quote from the prevailing and dissenting
opinions because they present the divergent views to be considered
in reaching a correct determination of the question involved. It,
of course, is true generally that, where there is a direct conflict
of testimony upon a matter of fact, the question must be left to
the jury to determine, without regard to the number of witnesses
upon either side. But here, there really is no conflict in the
testimony as to the facts. The witnesses for petitioner flatly
testified that there was no collision between the nine-car and the
two-car strings. Bainbridge did not say there was such a collision.
What he said was that he heard a "loud crash" which did not cause
him at once to turn,
Page 288 U. S. 339
but that, shortly thereafter, he did turn, and saw the two
strings of cars moving together with the deceased no longer in
sight; that there was nothing unusual about the crash of cars -- it
happened every day; that there was nothing about this crash to
attract his attention except that it was extra loud; that he paid
no attention to it; that it was not sufficient to attract his
attention. The record shows that there was a continuous movement of
cars over and down the "hump," which were distributed among a large
number of branch tracks within the yard, and that any two strings
of these cars moving upon the same track might have come together
and caused the crash which Bainbridge heard. There is no direct
evidence that, in fact, the crash was occasioned by a collision of
the two strings in question, and it is perfectly clear that no such
fact was brought to Bainbridge's attention as a perception of the
physical sense of sight or of hearing. At most there was an
inference to that effect drawn from observed facts which gave equal
support to the opposite inference that the crash was occasioned by
the coming together of other strings of cars entirely away from the
scene of the accident, or of the two-car string ridden by deceased
and the seven-car string immediately ahead of it.
We therefore have a case belonging to that class of cases where
proven facts give equal support to each of two inconsistent
inferences, in which event, neither of them being established,
judgment, as a matter of law, must go against the party upon whom
rests the necessity of sustaining one of these inferences as
against the other before he is entitled to recover.
United
States F. & G. Co. v. Des Moines Nat. Bank, 145 F. 273,
279-280, and cases cited;
Ewing v. Goode, 78 F. 442, 444;
Louisville & N. R. Co. v. East Tennessee, V. & G. Ry.
Co., 60 F. 993, 999;
Tucker Stevedoring Co. v. W. H.
Gahagan, 6 F.2d 407, 410;
Blid v. Chicago & N.W. R.
Co., 89 Neb. 689, 691,
et
Page 288 U. S. 340
seq., 131 N.W. 1027;
White v. Lehigh Valley R.
Co., 220 N.Y. 131, 135, 115 N.E. 439;
McGrath v. St. Louis
Transit Co., 197 Mo. 97, 104, 94 S.W. 872;
Quisenberry v.
Met. Street Ry. Co., 142 Mo.App. 275, 281, 126 S.W. 182;
Glancy v. McKees Rocks Borough, 243 Pa. 216, 219, 89 A.
972.
Compare New York Central R. Co. v. Ambrose,
280 U. S. 486,
280 U. S.
489-490;
Stevens v. The White City,
285 U. S. 195,
285 U. S.
203-204;
Southern Ry. Co. v. Walters,
284 U. S. 190,
284 U. S.
194.
The rule is succinctly stated in
Smith v. First National
Bank in Westfield, 99 Mass. 605, 611-612, quoted in the
Des Moines National Bank case,
supra:
"There being several inferences deducible from the facts which
appear, and equally consistent with all those facts, the plaintiff
has not maintained the proposition upon which alone he would be
entitled to recover. There is strictly no evidence to warrant a
jury in finding that the loss was occasioned by negligence, and not
by theft. When the evidence tends equally to sustain either of two
inconsistent propositions, neither of them can be said to have been
established by legitimate proof. A verdict in favor of the party
bound to maintain one of those propositions against the other is
necessarily wrong."
That Bainbridge concluded from what he himself observed that the
crash was due to a collision between the two strings of cars in
question is sufficiently indicated by his statements. But this, of
course, proves nothing, since it is not allowable for a witness to
resolve the doubt as to which of two equally justifiable inferences
shall be adopted by drawing a conclusion which, if accepted, will
result in a purely gratuitous award in favor of the party who has
failed to sustain the burden of proof cast upon him by the law.
And the desired inference is precluded for the further reason
that respondent's right of recovery depends upon the existence of a
particular fact which must be inferred
Page 288 U. S. 341
from proven facts, and this is not permissible in the face of
the positive and otherwise uncontradicted testimony of unimpeached
witnesses consistent with the facts actually proved, from which
testimony it affirmatively appears that the fact sought to be
inferred did not exist. This conclusion results from a
consideration of many decisions, of which the following are
examples:
Wabash R. Co. v. De Tar, 141 F. 932, 935;
Ragsdale v. Southern Ry. Co., 121 F. 924, 926;
Cunard
S.S. Co. v. Kelley, 126 F. 610, 617;
Frazier v. Georgia
Railroad & Banking Co., 108 Ga. 807, 33 S.E. 996;
Bowsher v. Grand Rapids & I. Ry. Co., 174 Mich. 339,
344, 140 N.W. 524;
Rashall v. Railroad, 249 Mo. 509, 522,
155 S.W. 426;
George v. Mo. Pac. R. Co., 213 Mo.App. 668,
674, 251 S.W. 729, 732;
Stines v. Dillman, 4 S.W.2d 477,
478;
Akerson v. Great Northern Ry. Co., 158 Minn. 369,
374, 197 N.W. 842;
Butterfield v. Trittipo, 67 Ind. 338,
343, 344;
Blid v. Chicago & N.W. R. Co., supra, p.
691-693. A rebuttable inference of fact, as said by the court in
the
Wabash Railroad case, "must necessarily yield to
credible evidence of the actual occurrence." And, as stated by the
court in
George v. Mo. Pac. R. Co., supra,
"It is well settled that, where plaintiff's case is based upon
an inference or inferences, the case must fail upon proof of
undisputed facts inconsistent with such inferences."
Compare 41 U. S.
Gilson, 16 Pet. 327,
41 U. S.
330-331. In
Southern Ry. Co. v. Walters, supra,
the negligence charged was failure to stop a train and flag a
crossing before proceeding over it. The Court concluded that the
only support for the charge was an inference sought to be drawn
from certain facts proved. In rejecting the inference, this Court
said (p.
284 U. S.
194):
"It is argued that it may be inferred from the speed of the
train when some of the witnesses observed it crossing other streets
as well as Bond Avenue, and from a guess of the engineer as to the
time required to get up such speed
Page 288 U. S. 342
after a full stop, that none could have been made at Bond
Avenue. But the argument amounts to mere speculation in view of the
limited scope of the witnesses' observation, the downgrade of the
railway tracks at the point, and the time element involved.
(
Compare Chicago, M. & St.P. R. Co. v. Coogan,
271 U. S.
472.) Five witnesses for defendant [employees] testified
that a full stop was made and the crossing flagged, and that no one
was hit by the rear of the tender, which was the front of the
train."
"An examination of the record requires the conclusion that the
evidence on the issue whether the train was stopped before crossing
Bond Avenue was so insubstantial and insufficient that it did not
justify a submission of that issue to the jury."
Not only is Bainbridge's testimony, considered as a whole,
suspicious, insubstantial, and insufficient, but his statement
that, when he turned shortly after hearing the crash, the two
strings were moving together, is simply incredible if he meant
thereby to be understood as saying that he saw the two in contact,
and, if he meant by the words "moving together" simply that they
were moving at the same time in the same direction, but not in
contact, the statement becomes immaterial. As we have already seen,
he was paying slight and only occasional attention to what was
going on. The cars were eight or nine hundred feet from where he
stood, and moving almost directly away from him, his angle of
vision being only 3� 33' from a straight line. At that sharp angle
and from that distance, near dusk of a misty evening (as the proof
shows), the practical impossibility of the witness being able to
see whether the front of the nine-car string was in contact with
the back of the two-car string is apparent. And certainly, in the
light of these conditions, no verdict based upon a statement so
unbelievable reasonably could be sustained as against the positive
testimony to the contrary of unimpeached witnesses, all in a
position to see,
Page 288 U. S. 343
as this witness was not, the precise relation of the cars to one
another. The fact that these witnesses were employees of the
petitioner, under the circumstances here disclosed, does not impair
this conclusion.
Chesapeake & Ohio Ry. v. Martin,
283 U. S. 209,
283 U. S.
216-220.
We think, therefore, that the trial court was right in
withdrawing the case from the jury. It repeatedly has been held by
this Court that, before evidence may be left to the jury,
"there is a preliminary question for the judge not whether there
is literally no evidence, but whether there is any upon which a
jury can properly proceed to find a verdict for the party producing
it, upon whom the onus of proof is imposed."
Pleasants v.
Fant, 22 Wall. 116,
89 U. S. And,
where the evidence is "so overwhelmingly on one side as to leave no
room to doubt what the fact is, the court should give a peremptory
instruction to the jury."
Gunning v. Cooley, 281 U. S.
90,
281 U. S. 94;
Patton v. Texas & Pacific Ry. Co., 179 U.
S. 658,
179 U. S. 660.
The rule is settled for the federal courts, and for many of the
state courts, that whenever, in the trial of a civil case, the
evidence is clearly such that, if a verdict were rendered for one
of the parties, the other would be entitled to a new trial, it is
the duty of the judge to direct the jury to find according to the
views of the court. Such a practice, this Court has said, not only
saves time and expense, but "gives scientific certainty to the law
in its application to the facts and promotes the ends of justice."
Bowditch v. Boston, 101 U. S. 16,
101 U. S. 18;
Barrett v. Virginian Ry. Co., 250 U.
S. 473,
250 U. S. 476,
and cases cited;
Herbert v. Butler, 97 U. S.
319,
97 U. S. 320.
The scintilla rule has been definitely and repeatedly rejected so
far as the federal courts are concerned.
Improvement Co. v.
Munson, 14 Wall. 442,
81 U. S. 448;
Commissioners v. Clark, 94 U. S. 278,
94 U. S. 284;
Small Co. v. Lamborn & Co., 267 U.
S. 248,
267 U. S. 254;
Gunning v. Cooley, supra; Ewing v. Goode, supra, at pp.
443-444.
Page 288 U. S. 344
Leaving out of consideration, then, the inference relied upon,
the case for respondent is left without any substantial support in
the evidence, and a verdict in her favor would have rested upon
mere speculation and conjecture. This, of course, is inadmissible.
Chicago, M. & St. P. Ry. v. Coogan, 271 U.
S. 472,
271 U. S. 478;
Gulf, M. & N. R. Co. v. Wells, 275 U.
S. 455,
275 U. S. 459;
New York C. R. Co. v. Ambrose, supra; Stevens v. The White
City, supra.
The judgment of the Circuit Court of Appeals is reversed, and
that of the District Court is affirmed.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO concur in the
result.