I concur in the result affirming the judgment, but the basis for such concurrence is that appellant's assignments of error cannot be sustained, rather than on the ground that since the trial court should have directed a verdict for defendants the assigned errors could not have prejudiced the plaintiff.
In the first place, defendants have not cross-assigned error because of the trial court's refusal to direct a verdict in their favor. They do not argue that error 1 was committed by such refusal. The question therefore is not before us for review.
Secondly, in view of the positive testimony of the occupants of the Sorenson car, that defendants' bus struck such car, I believe that it would have constituted an invasion of the province of the jury for the court to say — by directing a verdict — that such testimony could not be 2 believed. While I agree with what is said in the court's opinion to the effect that the crease in the fender could not have been made by the rear part of the bus; nevertheless the jury could, in my opinion, have come to the same conclusion as this court relative to such fact, and yet have found that the bus did strike the car and cause it to go out of control. I can see no reason why the jury might not have concluded that the witnesses must have been mistaken either as to the fender not having been so damaged theretofore as to its not having been damaged subsequent to the time the bus struck the car. I do not understand *Page 18 that a jury must be convinced of the veracity of everything a witness testified to or be precluded from giving credence to any of it.
The fact that the jury reached what to us appears to be a very reasonable conclusion on the vital issue as to whether the bus struck the Sorenson car, should not lead us to assert that there was no such issue of fact to be determined. The fact that the physical evidence was such, as clearly delineated in the court's opinion, as to preclude a reasonable finding that the crease in the fender of the car was caused by contact with the bus; and the further fact that plaintiff argued to the jury that it was so caused; still leaves the question of whether there was any impact, to be determined by the trier of the fact in view of the direct testimony that there was such contact.
I shall briefly state my reasons for concurring in affirmance of the judgment: Only two alleged errors are argued by appellant as grounds for reversal. First, she contends that the court committed reversible error in permitting counsel for the defendants to cross-examine the witness Sorenson as 3, 4 to why she did not have a driver's license and to discuss the evidence so adduced in the argument of counsel to the jury. The questions on cross-examination made inquiry as to whether the witness did not fail to apply for a driver's license because she was afraid she could not meet the qualifications therefor, and whether she was not nervous while driving on the highway without a license. The court did not err in permitting such examination. Furthermore, the court specifically instructed the jury to the effect that even if it were found that the witness Sorenson drove in a careless manner, nevertheless if the driver of the bus was negligent in the respects alleged in plaintiff's complaint and such negligence was a proximate cause of the injuries to plaintiff, the latter would be entitled to a verdict. In view of such instruction the cross-examination of the witness in question could not have prejudiced the plaintiff. *Page 19
The same conclusion must be reached in regard to counsel's argument to the jury based on the evidence so adduced. He merely argued, in pointing to a motive for bias, on the part of the witness, that in view of her driving on the 5 highway without a license to do so, she would be interested in fastening fault for the collision on some other person. Whether such inference appealed to the jury as a reasonable one may be questionable, but I can see no impropriety in the argument.
The second error claimed as the basis for a reversal was the refusal of the court to instruct the jury, on request of plaintiff, that though it be found that the bus did not strike the Sorenson car, nevertheless if the bus crowded the Sorenson car off the road so as to make it 6 uncontrollable and the collision occurred as a result thereof, the plaintiff would be entitled to recover; and error in instructing the jury that in order for the plaintiff to recover it must be found that the bus struck the Sorenson car. The fallacy of appellant's contention is obvious. Both by pleading and proof, plaintiff asserted that the Sorenson car went out of control because it was hit by the bus. The only explanation given by the driver and other occupants of the Sorenson car as to why such car careened over to the wrong side of the highway was that the bus struck it. True, they testified that the bus impinged on their side of the road as it approached them, so as to necessitate the Sorenson car being driven with the right wheels on the shoulder of the highway. But that such condition caused the car to go out of control was nowhere stated in the evidence. The giving of the requisite instruction would have invited the jury to speculate as to whether the car would have gone out of control even it it had not been struck by the bus, despite the driver's testimony that it was knocked out of control. The ruling refusing the requested instruction and the giving of the one excepted to, were correct.
TURNER, J., concurs in the results on grounds expressed by Mr. Justice McDONOUGH. *Page 20