Georgia Railroad & Banking Co. v. Dawson , 37 Ga. App. 542 ( 1927 )

Jenkins, P. J.

(After stating the foregoing facts.) Counsel for the plaintiff in error contend that the proof offered by the plaintiff under the second count of the petition, seeking to explain and excuse the presence of the deceased prone and helpless upon the track, merely raises a reasonable suspicion or conjecture that the explanation offered might possibly be true, but can not be taken to constitute evidence of probative value establishing such theory as actually true,-citing Gainesville &c. R. Co. v. Edmond-son, 101 Ga. 747, 751 (29 S. E. 213). While the contention is not without force, we are of the opinion that the jury were authorized to find that the explanation offered, as supported by the proved facts and circumstances, amounted to more than the setting up of a mere possibility, and that the jury were authorized to find as a matter of fact that the explanation thus presented constituted the most reasonable and most probable solution which could be rationally drawn in explanation of the unusual and extraordinary situation. See, in this connection, Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (102 S. E. 542). The plaintiff, in seeking to account for the presence of the deceased lying prone and helpless upon the track, introduced evidence in support of its exculpatory theory of sudden illness, while the defendant submitted testimony in support of its defensive theory of drunkenness. Upon the issue of drunkenness the evidence was in conflict, but the jury were authorized to find against the contention of the defendant and in favor of that of the plaintiff. The predicament of the deceased being most extraordinary in character, the jury were authorized to find as a matter of fact that if it was not occasioned by drunkenness, it would reasonably have to be taken as due to an attack of the sudden illness to which deceased was shown to have been subject, and which, tliere was some slight evidence going to show, might have been then impending. When a situation is proved to exist of such peculiar, unusual, and extraordinary character that it can properly be said that only certain given explanations are reasonably possible, and that no other is reasonably probable, the true explanation can be logically and legally established by eliminating the alternative theories of causation. In the instant case the jury were authorized to believe that the extraordinary condition and situation of the deceased was due either to sudden illness or to drunkenness on his part. Having rejected the evidence supporting the theory of drunkenness and accepted the evidence disproving it, they were authorized to find that the explanation offered by the plaintiff, as supported by the proved facts and circumstances, was true, and constituted the only rational and probable explanation of the undisputed peculiar situation.

Judgment affirmed.

Stephens and Bell, JJ., concur.