Opinion
Argued September 19, 1928
Affirmed October 2, 1928 Rehearing denied October 23, 1928
From Multnomah: GEORGE ROSSMAN, Judge.
For appellant there was a brief and oral argument by Mr. M.B. Meacham.
For respondent there was a brief over the names of Mr. L.E. Crouch and Messrs. Davis Harris, with an oral argument by Mr. Paul R. Harris.
In Banc.
This is an action for damages suffered by plaintiff in an automobile collision. The collision occurred about 8 o'clock in the morning on January 8, 1926. The morning was very foggy, the temperature below freezing and the pavement was very slippery because of ice thereon. Plaintiff was driving her car northerly along Interstate Fill Road on her way to Vancouver, Washington. Defendant owned a truck at that time being driven by one of its employees along said road in a southerly direction. Plaintiff charges defendant with negligence in this, that said truck was being operated "at a high rate of speed, through a heavy fog, on the left or eastern portion of said roadway, and without sufficient headlights, and in utter disregard of the private rights of plaintiff or others, using said roadway in such a manner so as to collide with the automobile of plaintiff," resulting in injures to plaintiff and her car for which she sought to recover judgment for $15,527 from defendant. Defendant, after denying the material allegations of the complaint excepting the formal averments, alleged an affirmative answer to the effect that the injures suffered by plaintiff were caused by her own want of care in this, that she attempted to pass two other trucks which were preceding her car in the same direction at a time, when owing to the fog she was unable to see 100 yards ahead of her, and that the collision occurred while she was driving on the west or left half of said road. In addition to a general verdict in favor of the plaintiff for the sum of $7,500 the jury returned a special verdict submitted at the request of defendant as follows:
"We, the jury, duly empaneled and sworn in the above entitled action, do hereby return to the court the following questions of fact with our answers thereto:
"1. At the time and place of the accident did the plaintiff exercise the ordinary care of a reasonably prudent person in driving along the highway?
"Answer. Yes, she did.
"2. Did the failure to exercise such care contribute in any way to the accident?
"Answer. No, she did not.
"3. Did plaintiff attempt to pass the wood truck of the Schofield Fuel Company at the time and place of the accident?
"Answer. Yes, she did.
"4. If your answer to question 3 is in the negative, disregard the present question; but if your answer is in the affirmative, then answer the following question:
"Did such attempt contribute in any way to the accident.
"Answer. No, it did not."
Judgment was entered upon the verdict. Defendant appeals assigning two errors. Both of these errors involve the question raised by defendant's motion for a judgment in its favor because the special verdict of the jury is inconsistent with the general verdict and shows that the plaintiff was guilty of contributory negligence, which would defeat her right to recover.
AFFIRMED. REHEARING DENIED.
Defendant bases its contention upon the claim that there is no evidence to support the claim that plaintiff was driving on her right half of said road which is the eastern half thereof. The record contains this testimony:
"Q. And the first thing you noticed was this truck ran into you? A. I saw this other truck without any lights right on top of me and that is the last I remember.
"Q. You were on the right hand side the whole time? A. Yes, I was staying over to the edge of the pavement so that I could follow the fence. My dim lights would show on the fence in the heavy fog. * *
"Q. The truck then was over — struck you when you were just about 20 or 25 feet behind the other truck and close to the fence. A. Yes."
This testimony is taken from appellant's brief. It alone clearly shows there was material evidence supporting plaintiff's complaint to the effect that she was driving on her right half of the road. There were two witnesses who also testified that a short time after the collision occurred they visited the scene thereof and found glass on the eastern side of the road which was plaintiff's right side. Plaintiff's car also was marked so as to show that it was struck on its left side. The jury would have been justified in concluding from that physical fact that plaintiff was on her right half of the road.
The special verdict is not inconsistent with the general verdict. The special verdict agrees with the general verdict in this, that plaintiff was exercising ordinary care at the time of the collision. Defendant bases its main contention on the jury's answer to question No. 3: "Did plaintiff attempt to pass the wood truck of the Schofield Fuel Co. at the time and the place of the accident? Answer. Yes, she did." It will be noticed that this question does not state what plaintiff did in attempting to pass the truck ahead of her and traveling in the same direction. The fact that according to the jury her attempt to pass did not contribute in any way to the accident is consistent with the general verdict and clearly indicates that plaintiff was not in the act of passing the truck ahead of her when the collision occurred, or at least she had not proceeded in the attempt far enough to be on the left half of the road as claimed by defendant.
We believe that the jury's verdicts are consistent and that there was evidence to support both verdicts. The judgment must be and is affirmed.
AFFIRMED. REHEARING DENIED.
ROSSMAN, J., did not participate in this opinion.
BEAN, J., absent.