I respectfully dissent from the conclusion of the majority upholding the finding of the jury that the found negligence of the plaintiff was not a proximate or contributory cause of the injury for which damages were awarded by the verdict and judgment. The undisputed evidence, together with the findings of the jury, established these facts:
Appellant at the time of the collision was proceeding slowly and cautiously to turn across the public highway from its south to its north side to enter his premises situated on the north side of the highway. As he started to make the turn across the center line of the highway, he was compelled to stop his car to permit an automobile approaching from his rear and going east on the highway to pass. Before making this stop, he had seen the lights of appellee's automobile approaching from the east along the north side of the highway. After the automobile coming from his rear passed him it momentarily obscured the lights on the appellee's car. In this situation, appellant again put his car in motion, and, when it had moved not more than 2 1/2 feet across the center line of the highway, appellee ran his car violently against appellant's car, injuring both cars and causing serious personal injuries to appellee and his wife. There were fourteen or fifteen feet of roadway on the north side of the highway between appellant's car, when it was struck by appellee's car, and the north edge of the roadway. The jury found that the appellant was negligent in driving his car across the center line of the roadway at a time when the appellee's car was in close proximity, and that such negligence was the proximate cause of the injuries to plaintiffs; that appellant did not drive his car against the left side of appellee's car, and did not fail to keep a proper lookout for cars approaching from the east on the highway at the time he drove his car across the center line of the roadway. The jury also found that appellee Jewel E. Kircher "at and immediately prior to the time of the accident" was negligently driving his car at a dangerous and excessive rate of speed, and negligently "failed to keep a proper lookout for vehicles that might be lawfully upon or attempting to cross the highway ahead of him."
If these undisputed facts and the findings of the jury do not make a case of contributory negligence as a matter of law, then no such case can be made.
The findings of the jury that appellee was negligent in the respects before stated are amply sustained by the evidence, and appellees make no complaint of these findings. Their claim that the judgment should be affirmed is based upon the general proposition that the question of proximate cause is a question of fact for the jury, and that the evidence in this case sustains the finding of the jury that appellee's negligence was not the proximate cause of their injury.
It is unnecessary, and may be wholly unprofitable, to speculate on the ratiocination of the jury in reaching the fact conclusion that the negligence of the appellees was not the proximate cause of their injury, but it seems likely to me that they misunderstood or misapplied the charge of the court. As a matter of fact, it could not be accurately found that the negligence of each was "the" proximate cause of appellee's injuries. It was the negligence of one or of both of the parties, and, if the negligence of the appellees directly contributed to the accident, it was "a," and not "the," proximate cause.
The charge did not define contributory negligence, and the jury probably concluded that it was for them to say whose negligence was most responsible for the accident, and proceeded in good faith to apply the rule of comparative negligence.
But, be that as it may, to uphold a verdict and judgment on these facts and findings, because the jury found that appellees' negligence was not the proximate cause of their injury, is in effect to abrogate the rule that in cases of this kind a plaintiff cannot recover for injuries which his own negligence directly contributed to cause. The integrity of this rule should not be left to either the arbitrary discretion or the misconceptions of a jury.
In my opinion, the judgment of the court below should be reversed, and judgment here rendered for appellant.