The opinion
Smith, J.
(dissenting) — I must respectfully disagree with the majority. A dissent in a law ease should of course not be filed unless some basic principle of law is at stake. But our duties in such cases is to enforce legal doctrines rather than to attain what may seem to us to be justice in the individual case. We best serve the broader ends of justice by following strictly the general rules of procedure that have been found most likely to promote justice.
The importance of this consideration appears when dealing with the admission of evidence and observance of the rules to be applied by the jury in determining facts in absence of direct evidence or, as here, in possible contradiction of direct evidence. Our rule for admission of circumstantial evidence,, while less *1155 strict than, in many jurisdictions, is still designed so far as possible to prevent adjudication upon mere speculation. It should be strictly followed.
The burden upon one who seeks damage for alleged injury in an auto collision is well understood. He must establish both the causative negligence of the other party and his own freedom from contributory negligence. The latter requirement is frequently not so difficult where under the “no-eyewitness” rule he can invoke an inference that he obeyed a statutory requirement or followed the instinct of self-preservation. But such inferences avail him not as against direct testimony of an eyewitness. Rickabaugh v. Wabash R. Co., 242 Iowa 746 , 748 et seq., 44 N.W.2d 659 . See Loucks v. Fox, 261 Mich. 338 , 246 N.W. 141 .
Of course real circumstantial evidence, if available, may under proper safeguards be admitted to create a fact question for the jury even as against direct evidence. And I am aware of the authorities cited by the majority so holding. But where there is direct testimony of contributory negligence, or direct testimony negativing the plaintiff’s freedom from such negligence, the safeguards should be strictly insisted on to prevent a decision based upon mere conjecture or surmise.
The formula we have adopted in Iowa for admission of such evidence is probably as well and generally understood as repeated, statement can make it: The circumstances relied on must be such as to make the desired theory reasonably probable, not merely possible, and more probable than any other. It has in numerous opinions been carefully worded both affirmatively and negatively. It requires more reasonable probability than any other, and expressly excludes mere possibility. It defines what is, and what is not, admissible and is clearly designed to reduce to a minimum the danger of a determination by the trier of fact, based on guess or speculation.
Of course the jury in a law action is the trier of fact. But the court should not abdicate its duty of determining when a question of fact is presented — its duty of forestalling judgments such as the one involved here which are clearly based on conjecture and mere possibility instead of any real probability sug *1156 gested by the evidence. The proper performance of that duty requires a determination of a question of law.
In my judgment the majority opinion here errs by its failure to perform that duty in respect of the issue of Soreide’s freedom from contributory negligence. Defendant Vilas testified unequivocally that the Soreide (or Standard Oil Company) car came, down the west fork of Highway 110. He estimated it was “about a block and a half up the highway from the intersection.” He says: “It didn’t stop at the intersection. It came right through onto Highway 20 * *
It is undisputed there' was a statutory stop sign with at least two preliminary warning signs on No. 110 as it approached No. 20. A failure to stop before entering No. 20 from No. 110 would be negligence per se unless excused by some circumstance not now conceivable or suggested, in the record. Section 321.345, Iowa Code, 1954; Hogan v. Nesbit, 216 Iowa 75, 77 , 246 N.W. 270 ; Willemsen v. Reedy, 215 Iowa 193, 196 , 244 N.W. 691 .
Clearly this Vilas testimony expressly negatived Mr. Soreide’s freedom from contributory negligence and destroyed any presumption or inference that may have otherwise been claimed up to that time under the “no-eyewitness rule.”
But the majority opinion holds there was circumstantial evidence consisting of a single tire mark extending approximately 75 feet in the north travel lane of Highway 20, westerly from a point described (somewhat indefinitely) by the highway patrolman (Grotewald) who made the measurement, as “3 feet seven inches south of the north edge of the curb on Highway 20.” That of course does not fix its eastern starting point.
.He identified its eastern end on Exhibit A and undertook to show its course on the exhibit westerly by the scale by which the exhibit itself had been drawn by another witness. The original Exhibit A was drawn to a scale of one inch to ten feet. Manifestly the plat appearing in the majority opinion can give at best a very inadequate idea of the actual physical situation. It may help “visualize” the general physical appearance but is an unsound item to be treated as evidence. Kurtz, another patrolman, says “the east end of it (the single tire mark) was about three feet from the north edge of the pavement.” (Emphasis supplied.) Its distance east is still not stated.
*1157 Another patrolman (Soppeland) gives the east starting point of this “tire mark, or tire burn” as “a point about four feet and some inches” (later he says 4 feet 6 inches) “from where .the blacktop joins into the corner of 110 and 20.” That seems to be the only attempt to fix its eastern starting point.
This skid or tire-mark testimony was admissible as bearing on the place of impact of the two cars on the pavement. But it adds no weight of probability to contradict Vilas’ testimony as to the direction from which Soreide and his companion were coming. Vilas might easily be mistaken as to being entirely in his own lane of travel. But he could not mistake the direction of a car coming straight from the east and think it was coming from the north on Highway 110.
The Chevrolet was admittedly traveling at tremendous speed if it overcame the eastward momentum of the much heavier Cadillac and hurled it back 75 feet. Coming down No. 110 to the right turn on No. 20 it would either have to slow down or swing considerably to the left in order to widen and make possible the turn west. I am not prepared to affirm on such flimsy evidence a verdict and judgment convicting a reputable man of intentional perjury. I find here no evidence upon which to allow a jury to hold plaintiffs’ theory to be “reasonably probable, not merely possible, and more probable than any other.”
Plaintiffs urge another basis iipon which it is claimed the jury could properly find plaintiffs’ ear came from the east on No. 20 instead of from the north on No. 110. It involved testimony that Soreide was in 1949' familiar with roads in the vicinity and an assumption that because no longer employed in the immediate area he was unfamiliar with later road improvements. Plaintiffs contended that upon this insecure foundation the jury might well “infer” he would select a route farther east than Highway 110 and came to the fatal scene from the east on No. 20.
To this argument defendants respond that “an inference or presumption cannot be based upon a claimed fact which is itself based upon an inference or presumption.” Doubtless defendants’ argument is somewhat inaccurately stated.
The annotator in 95 A.L.R. 162 , at page 182, says this phraseology apparently has been used by courts “as a eon *1158 venient way of disposing of evidence which is regarded as too remote or uncertain to prove the ultimate facts at issue.”
I am abidingly convinced that so construed it fits the basis plaintiffs suggest here for their argument that the “jury might well infer” Soreide’s unfamiliarity with present conditions and that he would prefer the nine miles of known gravel and follow the route by it down to No. 20 instead of over to No. 110.
The present superiority of the route by way of No. 110 is apparently unquestioned by plaintiffs. There is no evidence of the respective conditions of the gravel portions of the two equidistant routes when Soreide still lived in and had charge of his Company’s business in that area, even if it be conceded the jury should be permitted to infer his route selection on May 21, 1954, was based on his knowledge of conditions in December 1949. There is no basis for comparison of the conditions of the two routes. The jury was permitted to conjecture even as to that.
I am abidingly convinced there was no competent evidence, circumstantial or direct, to meet the testimony of defendant Vilas as to the other car coming down Highway 110 without observing its duty to stop before entering No. 20.
It is plaintiffs’ misfortune they cannot account for the movements and purposes of Soreide and Evans on that fateful night. Their Company superior officer had instructed both “to go to Spencer, spend the night there and attend the grand opening of a new service station at Sutherland * * * the following morning.” Their luggage was later found in a Spencer motel where they were registered. Spencer is approximately sixty miles north (on Highway 110) and Sutherland thirty-nine north and a little west of where they met death.
"Whether they were in fact bound for Sioux City, fifty or sixty miles farther west, only a casual or chance wayside conversation (at the Cobblestone Ballroom) attests. The inquiry is perhaps as immaterial to us as it now is to them. I think there is prejudicial error in the record which should require reversal and that to hold otherwise is to break down a safeguard that should be preserved.
I would reverse and remand the case for retrial upon both main cases and both counterclaims. Of course if upon retrial *1159 there was no relevant evidence of Mr. Soreide’s freedom from contributory negligence, verdict should be directed against plaintiffs in their actions against defendants.
Hays and Larson, JJ., join in this dissent.