(dissenting).
Even the excellent opinion of Judge FARIS has not convinced me that this judgment should not be reversed. The trial court submitted to the jury three grounds of negligence. These three grounds were unrelated and were as follows: Excessive speed, violation of plaintiff’s legal right of way, and violation of a law requiring defendant to drive as near his right curb as practicable. The charge authorized the jury to bring in a verdict for plaintiff if the jury found any one of these three grounds existed. The verdict was general. If any one of these grounds was improperly submitted to the jury, a new trial should result because it is impossible to determine upon which ground or grounds the jury based its verdict and it is entirely possible that it may have been solely upon the erroneous ground. Wilmington Star Min. Co. v. Fulton, 205 U. S. 60, 77, 79, 27 S. Ct. 412, 51 L. Ed. 708; Chicago, St. P., M. & O. Ry. Co. v. Kroloff, 217 F. 525, 528 (C. C. A. 8); Travelers’ Ins. Co. v. Wilkes, 76 F.(2d) 701, 705 (C. C. A. 5); Baltimore & O. R. Co. v. Reeves, 10 F.(2d) 329, 330, 331 (C. C. A. 6); Erie R. Co. v. Gallagher, 255 F. 814, 817 (C. C. A. 2); Buckeye Cotton Oil Co. v. Sloan, 250 F. 712, 722 (C. C. A. 6).
Appellants specifically objected and excepted to that portion of the charge submitting the issue of excessive speed and strongly urge that matter here. I am unable to escape the conclusion that they are right in that contention and, therefore, that the case should be remanded. I am so convinced by the presence of certain physical facts which, to me, are entirely inconsistent either with excessive speed by defendants or with moderate speed by plaintiff (contributory negligence in this respect being pleaded) at the time of the collision. These physical facts are established by witnesses for both parties and are undisputed by any witness. Where physical facts so established and undisputed are present, they must be taken by court and jury as being true and they and the necessary inferences therefrom must prevail over oral testimony to the contrary. Chicago, M., St. P. & P. R. Co. v. Linehan (C. C. A.) 66 F.(2d) 373, 380; Liggett & Myers Tobacco Co. v. De Parcq (C. C. A.) 66 F.(2d) 678, 683; Ed. S. Michelson, Inc., v. Nebraska Tire & Rubber Co. (C. C. A.) 63 F.(2d) 597, 600, certiorari denied 290 U. S. 634, 54 S. Ct. 52, 78 L. Ed. 551; United States v. Harth (C. C. A.) 61 F.(2d) 541, 544; American Car & Foundry Co. v. Kindermann (C. C. A.) 216 F. 499, 502; Missouri, K. & T. Ry. Co. v. Collier (C. C. A.) 157 F. 347, 353, certiorari denied 209 U. S. 545, 28 S. Ct. 571, 52 L. Ed. 920 —all being cases in this court. While this rule is true generally, it is particularly applicable where the oral testimony is as to speed or other matters as to which the witnesses must necessarily make *796estimates in situations so sudden, unexpected, and brief as to make accuracy impossible in making estimates or stating opinions.
This evidence relates to the force with which plaintiff’s automobile travelled after the collision and to the effect of the ' collision upon defendant’s car. To understand the relation to the entire situation of this evidence and its effect thereon it is necessary to describe the accident. On a clear afternoon plaintiff, a mature man, was driving his car eastward on Westminster avenue in St. Louis, Mo. Defendant Booth was driving his car south on Whittier street, which intersects Westminster avenue. The collision occurred at this intersection. The testimony of plaintiff himself and of all other witnesses who testified upon that point is that the front of Booth’s car came in contact with the left (north) side of plaintiff’s car near the left rear wheel. Immediately following the collision plaintiff’s car passed over a five inch curbing at the southeast corner of the intersection and stopped when the rear left-hand portion of the car (at or near the rear wheel) collided with a tree standing on a grass park space five feet inside the curb line. At some time between the collision and the striking of the tree plaintiff was thrown from his car with such force as to render him unconscious and to seriously injure him. While there is some divergence in the testimony, it seems fairly inferable therefrom that he was thrown out before the car struck the tree and probably as it came in contact with the curbing.
It is quite clear that plaintiff’s car necessarily proceeded with considerable violence after the collision and before striking the tree or it would have been impossible for him to have been thrown so violently therefrom. Thus we have established an indisputable physical fact that plaintiff’s car was moving very violently immediately after the collision and until it struck the curbing and thereafter the tree. There are only two plausible ways in which this could have occurred, and the question is whether the physical facts clearly established one or the other. One of them is that Booth’s car struck plaintiff’s car so violently as to cause these results. The other is that plaintiff was proceeding so rapidly at the time of the collision that the deflection caused by the collision or his lack of control of the car immediately thereafter was the cause.
The other physical fact is the condition of Booth’s car. Not only the testimony of defendants’ witnesses (which might be disregarded), but also the testimony of a policeman who was a witness for plaintiff, was in entire harmony and undisputed that the only damage done to Booth’s car was that the right-hand bracket of the front bumper was broken and there was a comparatively slight dent in the right front fender. The lamps were not broken and there was no other damage to the car. The car was so little damaged that it was driven away under its own power.
Considering the undisputed violence of movement of plaintiff’s car after the collision and considering the relatively slight damage done to Booth’s car by the collision, it is impossible for me to believe that Booth’s car could' strike plaintiff’s car with force enough to knock or throw it with the violence here present and not do more damage than the undisputed evidence shows was done to Booth’s car. These physical facts standing established by the evidence introduced by plaintiff can be explained in only one reasonable way and that is that plaintiff was proceeding at such a rapid rate of speed that the contact of Booth’s car served simply to swerve him from his course or to cause the car to get out of his control. It would' be impossible for plaintiff’s car to have gone over this curbing with sufficient violence to forcibly throw him from it and to smash violently into the tree -had he been going at a reasonable rate of speed.
There is another undisputed physical fact leading to the same conclusion. This is the position of plaintiff’s car when it came to rest on striking the tree. The testimony of both parties is undisputed that the left rear portion of plaintiff’s car struck the tree with considerable violence and that when the car stopped it was faced southwest. This position of the car is entirely inconsistent with its being thrown or pushed over the curb and into the tree through the force of the collision. At the time of the collision plaintiff’s car was proceeding eastward. The contact with Booth’s car was from the north at the left rear portion of plaintiff’s car. If considerable force *797had been exerted at that place the inevitable tendency would have been to have shoved or thrown the rear part of plaintiff’s car toward the south with a tendency to face it northeast. IIow it could have been completely reversed so as to face southwest within the relatively short 'distance between the collision and the curb and tne tree is incomprehensible, if such force from defendants’ car had been present.
Considering the above-established physical facts, it seems to me an inevitable conclusion that plaintiff’s car was proceeding with negligent rapidity at the time of the collision, and that defendants’ car was not. If this view is correct, it disposes of the case in so far as the negligence based on the ground of excessive speed of defendants’ car.
The evidence of plaintiff seems to me sufficient for submission to the jury as to the two other grounds even though the excessive speed of defendants be not submissible. I think this excessive speed is not necessarily a bar to1 recovery on either of these two grounds when it is considered that it was the rear portion of plaintiff’s automobile which was struck, and it is well argued in his brief that had the Booth car been well over on the west side of Whittier street plaintiff would have gotten by without a collision.
It seems to me the case should be remanded on the ground that the contributory negligence of plaintiff was conclusively established as a defense to any excessive speed of defendants and the absence of excessive speed on the part of the defendants was conclusively shown and, therefore, the issue of recovery for excessive speed should not have been submitted.