The opinion of the court was delivered by
Cunningham, J. :
The facts of this case are as follows : In company with his wife, the defendant in error alighted from a south-bound train of the plaintiff in error at its depot at Whitewater, Kan., before it [614]*614was light on the morning of August 24, 1898. There was no agent, nor was there any light in the depot or on the platform. Desiring to remain until it should become light, Mr. "Wood and his wife found their way into the waiting-room of the depot. The depot was west of the track and had a door on both the east and west sides. It was surrounded with a platform about eight feet wide, that on the south being three and one-half feet from the ground. There was no railing about the platform. Mrs. Wood was at the time suffering from a diarrhea. Soon after the parties had entered the waiting-room Mr. Wood heard cries from his wife from the outside. This was the first he knew that she had left the room. He responded immediately, and found that she had fallen from the platform south of the east door of the waiting-room, and in the fall had sustained severe injuries. This was all the evidence in the case bearing upon the question of how the accident occurred. The defendant in error was awarded a verdict by the jury.
The negligence charged by the plaintiff was that the railway company did not maintain lights on the platform or in the waiting-room, nor maintain guardrails around its platform, and that it failed to provide water-closets for the tíse of its passengers, and did not keep an agent on duty to give information to passengers where to find the water-closets or to direct them how to leave the depot platform with safety in the dark. The railway company requested the court to instruct the jury to return a verdict in its favor on the theory that there was not sufficient evidence to warrant a recovery by the plaintiff. This was refused.
The plaintiff’s theory was that Mrs. Wood left the waiting-room for the purpose of finding a water-closet where she might conveniently and properly answer [615]*615the call of nature, and in so doing, being unacquainted with the depot and surroundings and without the advice of any one as to where to find the closets, and without a light to guide her, she, in groping around in the dark, fell from the platform and suffered the injuries complained of. The plaintiff in error, however, while tacitly admitting that were these assumed facts sufficiently shown it would be liable, claims that there is not sufficient evidence to warrant the jury in awarding damages on the assumption of the correctness of this theory. It contends that there are other theories as plausible and as consistent with the facts shown which would explain the result in a manner that would relieve the company from responsibility, and insists that, where a party relies upon circumstantial evidence to prove his case, those circumstances must not only be such as reasonably to lead to the conclusion arrived at by the jury, but that such coqclusion must be the only reasonable conclusion consistent with the evidence ; that, where the evidence is purely circumstantial and is equally consistent with a theory acquitting the defendant of liability as with one making it liable, plaintiff cannot recover. It points out one theory which would account for the happening of the accident pn the hypothesis of the company’s being free from negligence, or, at least, upon the hypothesis that the plaintiff’s wife was guilty of such contributory negligence as would bar recovery.
In support of its contention^ plaintiff in error cites Asbach v. The Chicago, B. & Q. Ry. Co., 74 Iowa, 248, 37 N. W. 182; Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600, 40 Pac. 915; Railway Co. v. Rhoades, 64 id. 553, 68 Pac. 58. We are very sure that the two cases cited from this court do not sustain this claim, nor do we think the Iowa case does. While [616]*616some of the language in that case seems to sustain the view of the plaintiff in error, when the facts of the case are examined it will be seen that such language must not be taken to state a general rule.
Circumstantial evidence in a civil case, in order to be sufficient to sustain the verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. The jury are not infrequently called on to decide between two or more theories, and in doing so may exercise their own best judgment in accordance with their oath-bound consciences. This must necessarily be so, for it is the province of the jury and not of the judge to determine whether the evidence better supports this or that theory. We invade their domain if we shall require them to say that a given set of circumstances are as consistent with one theory as with another. This court, in a very recent case (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876), had occasion to quote with approval the rule laid down by Professor Greenleaf upon this subject, which is as follows: “In civil cases it is sufficient if the evidence on the whole agrees with, and supports, the hypothesis which it is adduced to prove.” (Greenl. Ev. § 13a.)
In the ca¡se at bar, while we might imagine that the plaintiff’s wife was needlessly, listlessly and without heed taking a walk upon the unlighted and unguarded platform, and thereby negligently contributed to the injury complained of, it is certainly not an imputation upon either the honesty or intelligence of the jury that they concluded that she went out into the dark because of a compelling necessity, in search of a proper place in which to answer a strenuous call of nature, which place it was the duty of the railway company to furnish and afford means of finding, and [617]*617in making such search unwittingly fell from the platform, rather than that her fall was the result of heedlessness on her part. But even were the contention-of the plaintiff in error correct, it seems there was no-error committed, for the court instructed the jury that it was not sufficient that the facts and circumstances-relied on by the plaintiff should be merely consistent with his right to recover, but that they must be of such nature as to preclude every other theory. So it appears that the jury was abunda,ntly warned as to-its duty concerning the value of the circumstances shown.
It is true, as announced in Railway Co. v. Rhoades, supra, that presumptions may not be based upon presumptions, and that it will not do to consider chance or circumstantial evidence having but a questionable or circumstantial basis of fact, but this is very far from announcing that an undisputed fact may not be used as a basis from which to draw a reasonable conclusion, even though some other and opposite conclusion equally reasonable might also be drawn; otherwise, we might have a condition where a question of fact could not be settled, because the circumstances upon which its settlement depended might point to two or more equally reasonable conclusions. As between two or more reasonable deductions from circumstantial evidence, the court is not at liberty to direct which one the jury shall adopt.
Question is raised upon the misconduct of the attorney for plaintiff below in going outside of the evidence in his argument to the jury. The character of, and occasion for, these remarks was the subject of affidavits pro and eon upon the presentation of the motion for a new trial. The contention of the defendant in error, as shown by his affidavits, was correct, that whatever [618]
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The opinion of the court was delivered by
Cunningham, J. :
The facts of this case are as follows : In company with his wife, the defendant in error alighted from a south-bound train of the plaintiff in error at its depot at Whitewater, Kan., before it [614]*614was light on the morning of August 24, 1898. There was no agent, nor was there any light in the depot or on the platform. Desiring to remain until it should become light, Mr. "Wood and his wife found their way into the waiting-room of the depot. The depot was west of the track and had a door on both the east and west sides. It was surrounded with a platform about eight feet wide, that on the south being three and one-half feet from the ground. There was no railing about the platform. Mrs. Wood was at the time suffering from a diarrhea. Soon after the parties had entered the waiting-room Mr. Wood heard cries from his wife from the outside. This was the first he knew that she had left the room. He responded immediately, and found that she had fallen from the platform south of the east door of the waiting-room, and in the fall had sustained severe injuries. This was all the evidence in the case bearing upon the question of how the accident occurred. The defendant in error was awarded a verdict by the jury.
The negligence charged by the plaintiff was that the railway company did not maintain lights on the platform or in the waiting-room, nor maintain guardrails around its platform, and that it failed to provide water-closets for the tíse of its passengers, and did not keep an agent on duty to give information to passengers where to find the water-closets or to direct them how to leave the depot platform with safety in the dark. The railway company requested the court to instruct the jury to return a verdict in its favor on the theory that there was not sufficient evidence to warrant a recovery by the plaintiff. This was refused.
The plaintiff’s theory was that Mrs. Wood left the waiting-room for the purpose of finding a water-closet where she might conveniently and properly answer [615]*615the call of nature, and in so doing, being unacquainted with the depot and surroundings and without the advice of any one as to where to find the closets, and without a light to guide her, she, in groping around in the dark, fell from the platform and suffered the injuries complained of. The plaintiff in error, however, while tacitly admitting that were these assumed facts sufficiently shown it would be liable, claims that there is not sufficient evidence to warrant the jury in awarding damages on the assumption of the correctness of this theory. It contends that there are other theories as plausible and as consistent with the facts shown which would explain the result in a manner that would relieve the company from responsibility, and insists that, where a party relies upon circumstantial evidence to prove his case, those circumstances must not only be such as reasonably to lead to the conclusion arrived at by the jury, but that such coqclusion must be the only reasonable conclusion consistent with the evidence ; that, where the evidence is purely circumstantial and is equally consistent with a theory acquitting the defendant of liability as with one making it liable, plaintiff cannot recover. It points out one theory which would account for the happening of the accident pn the hypothesis of the company’s being free from negligence, or, at least, upon the hypothesis that the plaintiff’s wife was guilty of such contributory negligence as would bar recovery.
In support of its contention^ plaintiff in error cites Asbach v. The Chicago, B. & Q. Ry. Co., 74 Iowa, 248, 37 N. W. 182; Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600, 40 Pac. 915; Railway Co. v. Rhoades, 64 id. 553, 68 Pac. 58. We are very sure that the two cases cited from this court do not sustain this claim, nor do we think the Iowa case does. While [616]*616some of the language in that case seems to sustain the view of the plaintiff in error, when the facts of the case are examined it will be seen that such language must not be taken to state a general rule.
Circumstantial evidence in a civil case, in order to be sufficient to sustain the verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. The jury are not infrequently called on to decide between two or more theories, and in doing so may exercise their own best judgment in accordance with their oath-bound consciences. This must necessarily be so, for it is the province of the jury and not of the judge to determine whether the evidence better supports this or that theory. We invade their domain if we shall require them to say that a given set of circumstances are as consistent with one theory as with another. This court, in a very recent case (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876), had occasion to quote with approval the rule laid down by Professor Greenleaf upon this subject, which is as follows: “In civil cases it is sufficient if the evidence on the whole agrees with, and supports, the hypothesis which it is adduced to prove.” (Greenl. Ev. § 13a.)
In the ca¡se at bar, while we might imagine that the plaintiff’s wife was needlessly, listlessly and without heed taking a walk upon the unlighted and unguarded platform, and thereby negligently contributed to the injury complained of, it is certainly not an imputation upon either the honesty or intelligence of the jury that they concluded that she went out into the dark because of a compelling necessity, in search of a proper place in which to answer a strenuous call of nature, which place it was the duty of the railway company to furnish and afford means of finding, and [617]*617in making such search unwittingly fell from the platform, rather than that her fall was the result of heedlessness on her part. But even were the contention-of the plaintiff in error correct, it seems there was no-error committed, for the court instructed the jury that it was not sufficient that the facts and circumstances-relied on by the plaintiff should be merely consistent with his right to recover, but that they must be of such nature as to preclude every other theory. So it appears that the jury was abunda,ntly warned as to-its duty concerning the value of the circumstances shown.
It is true, as announced in Railway Co. v. Rhoades, supra, that presumptions may not be based upon presumptions, and that it will not do to consider chance or circumstantial evidence having but a questionable or circumstantial basis of fact, but this is very far from announcing that an undisputed fact may not be used as a basis from which to draw a reasonable conclusion, even though some other and opposite conclusion equally reasonable might also be drawn; otherwise, we might have a condition where a question of fact could not be settled, because the circumstances upon which its settlement depended might point to two or more equally reasonable conclusions. As between two or more reasonable deductions from circumstantial evidence, the court is not at liberty to direct which one the jury shall adopt.
Question is raised upon the misconduct of the attorney for plaintiff below in going outside of the evidence in his argument to the jury. The character of, and occasion for, these remarks was the subject of affidavits pro and eon upon the presentation of the motion for a new trial. The contention of the defendant in error, as shown by his affidavits, was correct, that whatever [618]*618was said by his attorney was justified by, and in reply to, equally irrelevant remarks made by the attorney for the company. It seems that the court below took this view. We are not justified in disturbing the court’s findings in this matter. (Culp v. Mulvane, ante, page 143, 71 Pac. 273.)
Complaint is made that the court erred in refusing to require the jury more definitely to answer one of the special questions submitted relative to the particular items of damage for which the verdict was given. In answer to the question, “ How much do you allow for each particular item of damage?” the jury said : “Nine hundred dollars for damages received to plaintiff by injury to plaintiff’s wife.” The petition prayed for recovery in the sum of $2000 as compensatory damages, without specifying any items. Granting that it would have been proper for the court to require the jury specifically to state the items awarded as compensatory damages, it seems clear that, in the absence of specific inquiry by the company as to the various items of such damage,- no error was committed by the court in refusing to send the jury back for more explicit answer.
We fail to find in the entire case any reaspn for reversing the judgment of the court below, and hence it will be affirmed.
Johnston, C. J., Greene, Pollock, Burch, Mason, JJ., concurring.