ON PETITION FOR REHEARING Appellants in their petition for rehearing contend we erred, first, in holding the answers to interrogatories 1 to 7 were not sufficient to overcome the general verdict of the jury as to the negligence charged *Page 123 against them. After a re-examination of the record we find no reason to change our original opinion on this question.
It is next contended we erred in holding the answers did not show appellee guilty of contributory negligence as a matter of law. It is earnestly asserted our opinion as to 9. Interrogatory No. 23 is in conflict with the case of Tucker Freight Lines, Inc. v. Gross (1941),109 Ind. App. 454, 33 N.E.2d 353. The interrogatory questioned in that case is clearly distinguishable from the one here involved. There the questioned phrase was "reasonable care." In this case the jury found by its answer that by slowing down appellee "could" have avoided the accident, that is to say, it would have been possible to avoid the accident by slowing down. But, as pointed out in the original opinion, it does not show that under the same or similar circumstances an ordinarily prudent person "would" have slowed down. There might have been evidence before the jury to show that because of traffic following appellee it would have been unreasonably hazardous for him to slow down.
Finally, we are of the opinion the authorities cited in our original opinion dispose of appellants' contention that we failed to consider their assertion that the proximate cause of appellee's injuries was the blinding headlights of approaching vehicles.
The petition for rehearing is denied.
NOTE. — Reported in 60 N.E.2d 152. *Page 124