Campbell v. Washington Light & Power Co.

Pee CubiaM.

Tbis action was brought by tbe plaintiff to recover damages for tbe death of bis intestate child upon tbe ground that tbe defendant sold water polluted with typhoid germs and that tbe child drank tbe water, contracted typhoid fever, and died from tbe effects. Upon tbe conclusion of tbe evidence offered by tbe plaintiffs tbe court granted tbe motion to nonsuit,, upon tbe ground that there was not sufficient evidence to justify a recovery. At September Term, 1915, tbis Court affirmed tbe judgment of tbe Superior Court in a per curiam opinion.

Tbe cause comes before us again upon a petition to rehear and to reverse our former decision. In deference to tbe briefs filed in tbe cause by tbe learned counsel for tbe plaintiff, we have given the original record a reexamination, and we feel bound to adhere to our original decision, that tbe evidence introduced is not sufficient in law to justify a recovery, and that bis Honor, Judge Whedbee, properly sustained tbe motion to nonsuit. Evidence which shows it possible for tbe fact in issue to be as alleged, or which raises a mere conjecture, is not sufficient to be left to tbe jury.

Byrd v. Express Co., 139 N. C., 273 ;

S. v. Vinson, 63 N. C., 335 .

As is said by Mr. Justice Walker in Campbell v. Everhart, 139 N. C., at p. 516 : “Tbe sufficiency of evidence in law to go to tbe jury does not depend upon tbe doctrine of chance. However confidently one, in bis own affairs, may base bis judgment on mere probability as to a past event, when be assumes tbe burden of establishing such event as a proposition of fact and as a basis for tbe judgment of a court, be must adduce *769 evidence other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for a mere guessy and must be such as tends to actual proof.”

The petition to rehear is Dismissed.