
    Charles Leeright et al., Respondents, v. Minnie Ahrens, Appellant.
    St. Louis Court of Appeals,
    December 18, 1894.
    Negligence: inference of cause of injury: sufficiency of evidence. In the absence of positive proof as to the occurrence of an accident, causing death, the jury may infer the method of its happening from the physical facts, and may ascribe it to the theory sued upon, if that be consistent with the facts proven; nor will it matter that the evidence would also warrant other inferences whioh are not consistent with that theory.
    
      Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.
    Affirmed.
    
      H. A. Haeussler and Broadhead é Hezel for appellant.
    
      John J. O'Connor for respondent.
   Bond, J.

This action is by parents for damages caused by the drowning of their child, aged ten years, in a cistern on defendant’s lot, which, it is alleged, was left in an unsafe condition and on a place unguarded and attractive to children for play. It is further alleged that defendant knew, or by ordinary caré could have known, these facts. The answer was a general denial.

The uncontroverted evidence shows that defendant owned, and personally managed and controlled, a lot of ground on the north side of Papin street, west of Twenty-second street, about one hundred feet wide and running back to an alley, whereon several houses were situated, occupied by tenants, whose children and those of the neighbors used the yard and spaces between the houses as a common play-ground; that there was no fence around the lot; that a cistern filled with water, foul and' black and of a bad smell, was under the stairs leading from an exposed passage to a porch on the second story of one of the tenements in the alley part of the lot; that the cistern box was not as wide as the stairs, and was about three feet from the foot thereof; that the cistern was dangerous and the box surrounding it decayed and insecuie, having for many years been exposed to rain and weather without repair; that the yard and passage-ways on the lot all ran together and were an attractive place for children to play; that a child like the deceased could, by leaning against the box or sitting on it, fall into the cistern; that it was about knee high and had been uncovered for a year, and might be mistaken by a person crossing the passage where it was for an ordinary box; that the child of plaintiff was seen playing a game of hide and seek near the cistern with other children at 9 o’clock the night he was drowned; that the following morning his body was taken from the cistern; that at this time one of the boards at the top of the box was found leaning into the cistern; that defendant had been spoken to about this cistern box; that she replied she did not think it necessary to bother about fixing it — that she did not consider it dangerous; and that she had repeatedly seen the children playing on said grounds, and personally collected the rents from the tenants.

There was a verdict and judgment for plaintiffs for $250, from which this appeal is taken.

Appellant insists that there is no evidence to sustain the verdict of the jury, and in support of this contention calls attention to the fact that there is no testimony in the record showing that the deceased child either leaned or sat on the cistern box, as charged in the petition, and thereby fell into the cistern. The record shows that the happening of the accident was not witnessed by anyone; hence there could be no direct or positive testimony as to the actual manner of its occurrence. It does not follow, however, that there is no rational basis for an inference as to the manner in which the child got into the cistern. There is positive evidence that the box around the cistern was of a character that a child like the deceased, by leaning against it or sitting on it, would fall into the cistern, and that the child was playing near it at a late hour of the night. There is also evidence that the body of this child was taken from the cistern on the following morning, at which time the top plank of the box was found leaning into the cistern, as if it might have been detached or dragged by one falling. From this testimony and these physical facts the jury might have legitimately inferred that the accident happened as described in plaintiff’s petition. That they might also have drawn other and different inferences from the same testimony is immaterial. The rule is that an objection that there is no evidence to support a finding is not well taken, if it appears there is evidence from which the facts necessary to be shown might have been inferred by the jury, even though such facts would afford the basis of other diverse inferences. In such cases it is conclusively presumed that the jury drew that inference which would support their finding. Buesching v. St. Louis Gaslight Company, 73 Mo. 219; Soeder v. Railroad, 100 Mo. 673. In the cases supra it is distinctly held that, in the absence of positive proof as to the occurrence of an accident causing death, the jury may infer the method of its happening from the physical facts and ascribe it to a theory sued on, if consistent with the facts proven. That the deceased leaned against or sat on the cistern box is not only consistent with the observed facts as to his death, but is the most reasonable explanation which could be given of the accident under all the circumstances shown in this record.

There is nothing in the decision cited by appellant (Porter v. Brewing Ass’n, 24 Mo. App. 1) which is opposed to the conclusions herein affirmed. In that case the judgment was reversed and the cause remanded, on the ground that the testimony furnished no evidence of the fact essential to be proven, that the defendant’s servants had reasonable cause to apprehend a probable danger resulting from the condition in which they left the furnace prior to the accident, and, as the furnace was not a nuisance in itself, the defendant could not be held liable to a trespassing child. The distinction between that case and this case is that, in this, the probable danger to playing children is clearly shown, as well as knowledge of that fact on defendant’s part, and that all the testimony concedes that the cistern was a nuisance, being situated adjoining a passage-way and guarded only by a rotten covering.

As there is no complaint as to the instructions, except upon the theory of a lack of evidence to support them, and no other exceptions were saved, there is nothing further for review, and the judgment in this case for the reasons above given will be affirmed.

Judge Rombauek concurs. Judge Biggs is absent.  