Section 5.2 Positive and Negative Evidence

• Library: Evidence 2017

II. (§5.2) Positive and Negative Evidence

General Rule: A negative fact may be proven by negative evidence, but negative evidence may not be admitted to prove an affirmative fact. Negative evidence, when the facts justify it, is substantive evidence of fact.

In an action for the wrongful death of a child arising out of a rear-end vehicle collision, the court held that a negative fact ordinarily must be demonstrated by negative evidence. “Negative evidence that ‘I did not hear’ or ‘did not see’ is positive probative evidence where it is probable or ‘reasonably certain’ that the witness could and would have seen or heard had the event occurred.” Lafferty v. Wattle, 349 S.W.2d 519, 527 (Mo. App. S.D. 1961) (citing Chamberlain v. Thompson, 256 S.W.2d 779 (Mo. 1953); Paisley v. Kansas City Pub. Serv. Co., 173 S.W.2d 33 (Mo. 1943)).

The plaintiff’s testimony that she could have heard a bell on the streetcar if it sounded and heard none constituted evidence that no bell was sounded in Martini v. St. Louis Public Service Co., 237 S.W.2d 213 (Mo. App. E.D. 1951).

Absence of an entry in records of regularly conducted activity is admissible but not conclusive on the issue of nonoccurrence. Conklin v. Barfield, 334 F. Supp. 475 (W.D. Mo. 1971).

When an automobile passenger brought a negligence action against the railroad...