Snider v. Dayton Power & Light Co.

ON REHEARING

Decided June 26, 1938

By THE COURT

We have considered briefs of both parties or rehearing and are satisfied that the affirmative answer to the special interrogatory submitted and quoted in our decision on the application for rehearing requires an affirmance of the judgment. It is urged in the brief of counsel for plaintiff that the interrogatory would have been consistent with the. verdict had it been answered in the negative. We can not subscribe to this conclusion. A negative answer would have been consistent with ordinary care under all circumstances, whereas the affirmative reply establishes that the conduct of the plaintiff at the time of and immediately prior to the collision was inconsistent with the exercise of ordinary care. If in the exercise of due care he could have avoided the accident as the answer to the interrogatory determines, then he was chargeable with contributory negligence.

We regret that we did not give this interrogatory and the answer thereto more consideration in our original opinion but it was only alluded to briefly in the written argument and we did not give it the attention that it deserves.

The judgment will be affirmed.

BARNES, PJ, HORNBECK and GEIGER, JJ, concur.