DISSENTING OPINION We cannot agree with the majority opinion in this case.
Interrogatories 13, 14, 15, 16, 17, 20, and 21 are set forth in the majority opinion. By the answer to Interrogatory 13, the jury found that appellee failed to see appellant's semi-trailer before the collision. The answer to Interrogatory 14 sets forth that there was "no evidence" as to what, if anything, prevented the plaintiff from seeing said trailer before the collision in time to have avoided it. By the answers to Interrogatories 15 and 16, the jury found not only that appellee's failure to see that defendant's trailer before the collision was not only one of the causes of the collision, but the sole cause thereof.
Considering all of the interrogatories and answers and the general verdict herein with a due regard for the rule that it is the duty of the court to reasonably construe all of the answers and interrogatories together, and attempt to determine their true meaning, we find that it is wholly impossible to reach any other reasonable conclusion than that the answers to Interrogatories *Page 407 13, 14, 15, and 16 are in irreconcilable conflict with the general verdict.
The rule established by the courts of this state is clear in such instances. Where the answers to interrogatories are in irreconcilable conflict with the general verdict the answers will control and the general verdict must fall. Republic CreosotingCo. v. Hiatt (1937), 212 Ind. 432, 8 N.E.2d 981; Chicago v.Wilfong (1910), 173 Ind. 308, 90 N.E. 307. In Korrady, Admx. v. The Lake Shore Mich. So. R.R. Co. (1892), 131 Ind. 261, 29 N.E. 1069, the Supreme Court in part stated: "Where the facts stated in answer to an interrogatory are such as preclude a recovery, the court must so adjudge, although answers upon other points may be favorable to the party who relies upon the general verdict. If facts are found which are fatal to a recovery, the court is bound to deny the plaintiff a judgment whether such facts relate to one or many points. A defendant who establishes a point which completely and effectually destroys the alleged cause of action must necessarily succeed."
Appellee had the burden of proof on the issue of appellant's alleged negligence, and the answer of "no evidence" clearly and unequivocally amounts to a finding that the evidence showed a complete failure of proof on that issue, and the conclusion is inescapable that the jury found that there was no evidence that there was any acts or omission of appellant which prevented appellee from seeing the semi-trailer in time to have avoided a collision. Chicago, etc., R.R. Co. v. Wilfong, supra; UnionTraction Co. v. Howard (1910), 173 Ind. 335, 90 N.E. 764;Arcade File Works v. Juteau (1895), 15 Ind. App. 460, 400 N.E. 818, 44 N.E. 326.
Such answer to Interrogatory 14 is self-sufficient and depends upon no answer other than the answer to Interrogatory 13.Korrady v. The Lake Shore Mich. *Page 408 So. R.R. Co., supra; Republic Creosoting Co. v. Hiatt, supra.
In our opinion the court, therefore, erred in overruling appellant's motion for judgment in its favor in the answers to the interrogatories for the reason that said answers are in irreconcilable conflict with the verdict, and the cause should, therefore, be reversed.
Other reversible error, in our opinion, was committed by the trial court in permitting two witnesses to testify over appellant's objection that at the time of the collision there were no barricades, lights, pot torches, flares, or torchlights since the collision occurred within the corporate limits of the City of LaPorte. Burns' 1940 Replacement, §§ 47-2235, 47-2236, 47-2237; Associated Truck Lines v. Velthouse (1949),227 Ind. 139, 84 N.E.2d 54. The admission of this evidence permitted the consideration of acts of negligence by the jury in direct contradiction of appellant's instruction No. 40 given by the trial court that appellant's driver "was under no duty to place pot flares or barricades or to station another person or persons upon the highway with other warning devices."
Furthermore, the circumstances as shown by the undisputed evidence do not present any issuable fact as to a common law duty to use such flares or lights. Not every highway obstruction is unlawful.
The word "obstruction" includes neither the rightful use of a highway nor negligent operation of vehicles upon it. Ray v.City of Manchester (1865), 46 N.H. 59; Densmore v. City ofBirmingham (1931), 223 Ala. 210, 135 So. 320.
There was no evidence to show that the operation of appellant's semi-trailer was in any respect unnecessary, unreasonable, or unlawful. Such operation was being performed in the only manner by which the operation could be performed, and in the manner in *Page 409 which it had always been performed. Since the undisputed evidence shows that the stop in the operation was no longer than was reasonably necessary to shift gears, the semi-trailer was neither "parked," "stopped," "stalled," nor "disabled." Northern IndianaTransit v. Burk (1950), 228 Ind. 162, 89 N.E.2d 905; 2Blashfield's Cyc. of Auto Law and Practice, § 1197.
To hold the action of appellant as disclosed by the evidence was sufficient upon which to base a reasonable inference of negligence would practically stop the lawful backing or turning of trucking equipment on our public highways without committing acts of actionable negligence.
We feel that the court erred in overruling appellant's motion for a new trial, and that to permit the judgment in the instant case to stand amounts to a miscarriage of justice.
NOTE. — Reported in 88 N.E.2d 806.