Teche Lines, Inc. v. Pasavanti , 163 Miss. 93 ( 1932 )

The testimony in behalf of plaintiff averred that the Buick sedan had been brought to a stop on the right-hand side of the road, and was in a position straight with the course of the road when the collision occurred. This testimony was given by four interested witnesses, each having suits growing out of the same accident, and by a young man who was traveling some distance, in the rear, and whose testimony was discredited from more than one angle. The only other witness introduced by plaintiff failed to sustain the theory and assertions of plaintiff. Five disinterested witnesses, four of whom were passengers on the bus and one a party who was traveling in a car following the bus, testified in behalf of defendants that the Buick sedan did not come to a stop, but was traveling in the center of the road without any slackening of speed, and that, just before the point was reached where the bus was traveling, the Buick sedan was turned quickly to the right, and that the bus driver, seeing the near approach of the sedan, the latter traveling, as stated, in the center of the road, then turned the bus to the right. That the actions of the two drivers in thus turning each to his right caused the center and rear of the sedan to swing against the front of the rear fender of the bus, and this in turn damaged the baggage on the running board of the sedan and the rear part of the sedan, and threw the rear of the sedan into the ditch, injuring the passengers in the smaller car. The witnesses for defendant immediately after the accident looked over the signs of the tracks of the two vehicles, and these tracks, the facts of which are not seriously disputed, corroborate the statements of the defendant's witnesses.

It is undisputed that the front fenders and the front part of the Buick sedan were not touched. It is undisputed that the only signs of impact with the sedan were back of the front part, and along the running board and on the rear door and rear fenders. It is undisputed that the rear part of the rear fenders of the bus were untouched, and that no part of the bus in the rear of the rear wheels was touched. The only place where the bus was hit was on the front part of the fender of the rear wheel on the left-hand side. Thus it is demonstrated, by the undisputed physical facts, that the Buick sedan was not, as plaintiff's witnesses aver, standing still on the right-hand side of the road in a position straight with the course of the road, and that while in this position the rear of the bus skidded into the sedan. For if these assertions were true, then the physical signs would, upon a certainty, have shown one or the other of the two following results: Either (1) the bus would have struck the front of the Buick sedan, which as stated, is undisputed that it did not; or (2) the back part of the rear fender of the bus and the back part of the body of the bus would have shown signs of injury, and, as stated, the testimony is undisputed that the only sign of injury to the bus was on the front of the rear fender of the bus.

Here is the exact theory and testimony in behalf of plaintiff: That the Buick sedan had stopped on the right-hand side of the road with the sedan straight with the course of the road; that the bus was swaying from side to side in the road, and that when it reached the point where the sedan was standing the driver turned suddenly to his right, causing the rear end of the bus to swing around and strike the sedan on the running board, the rear door, and the rear fenders of the sedan. If this were true, then inescapably the rear part of the rear fenders of the bus, and the rear part of the body of the bus would have shown signs of injury; but it is undisputed that no such physical signs appeared on the bus. And this injury to the bus would have been the inevitable result of the first contact with the sedan. The majority opinion seeks to write around these physical facts by omitting any reference to the fact that the front part of the Buick sedan was not struck, and then to avoid the fact that the rear of the bus showed no injury introduces an argument about a rebound. There is no evidence in the record, nor any suggestion therein of any rebound, nor was any such explanation attempted in the briefs. In fact, appellees make no serious attempt to answer the physical demonstration above mentioned, but rely generally on the general effect of the verdict of the jury.

Courts go a long way to support verdicts of juries, it is true; but they should stop short of doing so by conjectures or by looking for possibilities, or by saying that what happened is problematical, or that the happenings cannot be accounted for, because that course of adjudication is to reverse the rule, and place the burden of proof on the defendant, whereas the law requires a plaintiff to make out a case; and it is not sufficient in doing this that the proof is left in a conjectural or problematical condition or one in which it is said that the happening cannot be accounted for; and this can no more be properly done in support of the verdict of a jury on appeal than it could be originally, in arriving at a verdict. Probability is the rule of adjudication in civil cases, and, when the undisputed physical facts demonstrate what the probabilities are, courts should follow these facts. The undisputed physical facts here demonstrate that the version given by the disinterested witnesses for the defendant is the true version, the only one consistent with the reasonable probabilities, and these physical facts are as clear as if there were photographs of them before us. Of the force of such acts this court said in Mobile Ohio R. Co. v. Bryant, 159 Miss. 528, 132 So. 539, 541: "These photographs disclose the facts to us by way of demonstration, and we apply the law to the facts thus demonstrated — any verdict to the contrary notwithstanding." When the physical facts substantially amount to demonstration, the verdict to the contrary thereof will be reversed. Flowers v. Stringer, 152 Miss. 897, 120 So. 198.

Inasmuch as the undisputed physical facts demonstrate that the accident did not happen as claimed by plaintiff, but happened as shown by the five disinterested witnesses who testified for the defendant, and since that evidence discloses contributory negligence on the part of plaintiff, which is a complete defense under the law of Louisiana, wherein the accident occurred, the judgment should be reversed.