noting that driving while drunk constitutes wanton negligence
How later courts described this case
- noting that driving while drunk constitutes wanton negligence
- "Ordinary contributory negligence will not bar a recovery in an action based on gross or wanton negligence, unless the contributory negligence is also gross or wanton."
Written by the judges who cited it.
The opinion
Opinion on Petition to Rehear
Mu. Justice Chattin.
Petitioner has filed a very earnest and forcible petition to rehear. He insists we erroneously held that the jury could have inferred from testimony the petitioner was *80 intoxicated approximately one hour after the accident, that petitioner was operating his automobile while under the influence of an intoxicant at the time of the accident ; and based on this inference could further infer the petitioner negligently failed to yield the right-of-way which caused the accident.
Thus, it is argued such reasoning violates the rule an inference cannot be properly based upon another inference.
However, we stated in our original opinion petitioner admitted in his original brief the jury was justified in finding from the evidence the petitioner was operating his automobile at the time of the accident while under the influence of an intoxicant; his only insistence being there was no evidence upon which the jury could find this negligence was the proximate cause of the accident.
A fact may be inferred from circumstantial evidence and such fact may be the basis of a further inference to the ultimate or sought-for fact. Good v. Tennessee Coach Company, 30 Tenn.App. 575 , 209 S.W.2d 41 (1948); Adamant Stone & Roofing Company v. Vaughn, 7 Tenn.App. 170 (1928); Nashville Gas & Heating Company v. Phillips, 17 Tenn.App. 648 , 69 S.W.2d 914 (1934).
There was admittedly circumstantial evidence from which the jury could have reached a conclusion the petitioner was operating his automobile while under the influence of an .intoxicant at the time of the accident. This was a finding of fact, and from this fact, taken in connection with the testimony of J. P. Scarlett relative to the physical facts appearing at the scene shortly after the accident, the condition of the automobile and the motorcycle and the absence of any evidence of proximate *81 contributory negligence on the part of the decedent, the jury conld have drawn an inference that petitioner, in his intoxicated condition, negligently failed to yield the right-of-way, which caused the collision. This was not an inference based upon an inference, but an inference drawn from facts.
The petition to rehear is denied.