Dissenting Opinion
Royse, J.I cannot agree with the majority opinion in this case. Appellee had the burden of establishing by a fair preponderance of evidence with probative value that appellant was guilty of at least one of the acts of negligence charged in his complaint and that his injuries were the proximate result of said negligence. I do not believe the evidence in the record, as accurately set out in the majority opinion, shows that appellee sustained the burden upon him necessary to sustain the judgment herein.
In fact it seems to me the majority opinion, in effect, recognizes this to be true when they say:
*125“It is appellant’s position that the evidence leads inescapably to the conclusion that the collision occurred within the intersection, with appellant approaching to the appellee’s right and he to appellant’s left, under which circumstances appellant had the right-of-way. This theory was also supported by appellee’s own testimony, that he was ‘about half way into the intersection’ when he first saw appellant, that the collision occurred ‘almost instantly’ and that his car. was in ‘Wall’ street following the collision. If the collision occurred in the above manner, we seriously question the sufficiency of the evidence to support the judgment. Appellee also testified in irreconcilable conflict with the above testimony that the collision occurred ‘about 10 feet south of the crosswalk on the south side of Wall street.’ Under the undisputed facts previously stated, we concur with appellant that it would have been physically impossible for the collision to have occurred in the place and manner last recited.” (My emphasis.)
To overcome this the majority relies on the statement of one witness (Mary Wallace) who came upon the scene after the collision occurred. How long after is not disclosed. Nor does this evidence indicate the automobiles were then in the same position as when the accident occurred.
I believe the interests of justice require a new trial in this case.