The facts have been fully stated in the majority opinion and need not here be repeated. The only basis upon which the plaintiff would have a legal right to recover against the defendant must be founded upon her claims that the defendant was negligent in failing to protect her against the unlawful discharging of a firearm by a fellow passenger. The allegations of negligence are:
1. The defendant failed to furnish plaintiff with safe passage on its public conveyance by allowing and permitting a passenger to handle and exhibit a gun in such a manner as to be discharged.
2. In permitting a passenger to display, handle and demonstrate a gun to the operator and should have foreseen in all probability it would be discharged injuring plaintiff.
3. In failing to immediately prevent by word or action the display of a firearm in said bus when the operator should have known and anticipated that revolvers are likely to go off at any time to the hurt of passengers in the vicinity.
4. In negligently carrying on a running conversation *Page 109 with a gun-toting passenger thereby failing and neglecting to consider and have an awareness of the danger to the plaintiff.
5. In negligently continuing to operate said bus at a time when a gun was being exhibited to him (the operator) it being averred that the gun was discharged due to a combination of the uneven movement of the bus and the manner in which the passenger was grasping the gun.
There is no dispute in the evidence that a passenger (a city policeman) did have in his possession a 32 caliber Colt automatic revolver and that as he was showing it to the bus operator it was discharged. The element of time as to when the passenger got on the bus and whether or not the gun was exhibited and discharged before the operator in the exercise of the highest degree of care consistent with the operation of the trolley bus could do anything to prevent the passenger from continuing in conduct that might result in injury to other passengers, is in considerable dispute.
No consideration is given, nor was the attention of the jury called to an equally important question. The passenger who had the pistol was a police officer experienced in the care and use of firearms. His possession of a firearm was entirely within the law. His personal conduct, other than attempting to display the automatic pistol to the operator, is not drawn into question by the pleadings or the evidence. To what extent, therefore, under the admitted facts there existed a hazard against which the operator should have acted or had a right to act was not given any consideration, although it presented an important jury question. A judgment for the plaintiff which gave no consideration to this question or which was very weak on the time element was, therefore, not supported by sufficient evidence. The amount of the verdict was also excessive. *Page 110 The plaintiff's evidence shows conclusively that she did not lose a single day from her work because of the alleged injury said to have been occasioned by the accidental discharge of the pistol.
Coming now to the question of the consistency of the general verdict with the answer to the second interrogatory. Before setting forth the interrogatory it should be noted that objection was interposed to the introduction of the company rule, which objection should have been sustained by the court, and the overruling of such objection constituted prejudicial error.
Proceeding upon the record, however, as it now stands the interrogatories were as follows:
"1. Do you find from the evidence in the case that the coach driver was guilty of any negligence?"
To which interrogatory the jury answered: "Yes."
"2. If your answer to Interrogatory No. 1 is in the affirmative, then answer No. 2. State in which respect that negligence consisted?"
To which interrogatory the jury answered: "Violations of company rule. Negligence in driver having unnecessary conversation with passenger and paying attention to conversation of a passenger."
From the foregoing answers the jury to be consistent should have found against the plaintiff for the reason that the violation of a rule prohibiting unnecessary conversation with a passenger could not be the proximate cause of the plaintiff's injuries sustained because of the failure to prevent a passenger from discharging a firearm. The verdict is, therefore, inconsistent with the answers to the interrogatories, and under the provisions of Section 11420-18, General Code, if the general verdict is inconsistent with the special findings, the court is bound by the special findings. The violation of the company rule not being or claimed to be a proximate cause of plaintiff's injuries, the judgment of the court should have been for the defendant. *Page 111