The opinion of the court was delivered by: KIRKPATRICK
In this action, brought to recover damages for injuries sustained as a result of the plaintiff's having been struck by the defendant's automobile while crossing a street, the jury returned a verdict for the defendant.
As a result of the deaths, before the trial, of both the defendant and the only eyewitness and of the plaintiff's consequent incompetence to testify, the only evidence of what occurred consists of a statement made by the defendant at the police station immediately after the accident and testimony as to physical conditions at the scene of the accident immediately after its occurrence. The statement is as follows:
'I was driving my 1939 Pontiac Sedan east on York Street and about 100 feet east of Trenton Avenue, driving in the middle of the street. I didn't even see anybody till I saw these two men right in front of me. I hit this man and stopped my car.
'Q. What part of York Street were you driving on? A. Right in the middle of York Street.
'Q. How fast were you traveling at this time? A. Not more than ten or fifteen miles an hour.
'Q. What lights did you have burning at the time? A. Both headlights.
'Q. Where was this man in relation to your car when you first saw him? A. Right in front of me just as I hit him.
'Q. Was there anything to obstruct your view of this man? A. Nothing. The streets were clear.
'Q. What did you do when you seen you were going to strike this man? A. Stopped right away.
'Q. Where was the man lying relation to your car after the accident? A. Right at the left front wheel.
'Q. Was your car damaged as a result of this accident? A. Yes, the left headlamp was broken off.
In answer to one of the interrogatories submitted by the Court, the jury found that the defendant did not say at the police station that the plaintiff and his companion were 'standing'
when he first saw them, thus eliminating the only scrap of evidence as to what the plaintiff was doing immediately before he was struck, and leaving the record bland as to how he came to be in front of the defendant's car.
The burden of proof was upon the plaintiff to show not only in what the defendant was negligent but also that his negligence in that respect was the proximate of efficient cause of the accident.