McCORMACK et al. v. ILLINOIS COMMERCIAL MEN'S ASS'N, 159 F. 114

QUARLES, District Judge (after stating the facts as above). The issue in this case is harrow and simple. Evidence was offered at the trial tending to prove an injury from external, accidental causes, sufficient to produce death in the case of a healthy person. On the other hand, evidence was received which tended to show that the assured was by his condition and habit of life predisposed to an attack of apoplexy, although no affirmative showing was made that he was actually suffering from any bodily ailment.

It is claimed that certain facts appearing in evidence are consistent witli and calculated to sustain the theory of the defense, as for instance, the failure of the assured to make any outcry or any effort to save himself, or break the force of his fall. There were, therefore, two possible inferences to be drawn from the facts disclosed. Was the death the result of the fall, or was the fall the result of death? To determine which inference should prevail was peculiarly the province of the jury.

No inference which the learned trial judge may have been inclined to entertain ought to foreclose the question of fact, while there remained a different theory of the evidence which the jury might reasonably have adopted.

If the jury found that the testimony of the two eyewitnesses was credible, they might have inferred therefrom that the assured while leaning forward to gather up his reins, was thrown out by the jolt or jerk occasioned by the obstruction which suddenly lifted the hind wheels of the buggy, and if they found that the fall was purely accidental, the evidence might have justified the further finding that death resulted from injuries occasioned by the fall. In short, we are satisfied that the case was one where the plaintiffs were entitled to go to the jury.

For these reasons, the judgment is reversed, and the cause remanded to the Circuit Court with instructions to grant a new trial