(dissenting).
I dissent.
A new trial was granted because tbe court considered tbe following instruction reversible error:
“If from tbe evidence you find that tbe Standard Oil Company truck was parked on tbe north end of tbe bridge on its own side of tbe highway during all tbe time that Mrs. McHardy traveled tbe quarter of a mile south of tbe bridge, then, and in that event, your verdict should be in favor of tbe defendants Alex Leonard and Standard Oil Company.”
Tbe evidence in this case is conclusive that tbe Orr car was traveling faster in approaching tbe bridge than was tbe McHardy car. It must follow that, if tbe Standard Oil Company truck was parked while tbe McHardy car traveled a quarter mile in approaching tbe bridge, it was so parked while tbe Orr car traveled more than a quarter mile in broad daylight. In McHardy v. Standard Oil Co. 231 Minn. 493, 499, 44 N. W. (2d) 90, 94, a companion case arising out of tbe same accident, we said:
“If we were to accept Mrs. McHardy’s testimony that tbe truck was parked on tbe north end of tbe bridge on its side of tbe highway during all tbe time that she traveled tbe quarter mile south of the bridge, such parking in broad daylight would not be tbe proximate cause of plaintiff’s injuries [citing and following Geisen v. Luce, 185 Minn. 479, 242 N. W. 8].”
If that statement is tbe law, there could be no error in tbe above instruction. I cannot see bow we can consistently approve instructions Nos. 1 and 2 set forth in tbe majority opinion and bold that tbe one on which tbe trial court based tbe order granting a new *391trial is reversible error. It seems obvious to me that, if the jury believed the testimony establishing the fact that the truck remained parked while the McHardy car traveled a quarter mile, it necessarily rejected the contrary testimony of other witnesses. I cannot see how the jury could have been misled by this instruction. If it believed the testimony establishing that the truck was parked all the time the McHardy car traveled the quarter mile south of the bridge, it would have to disbelieve the testimony of the witnesses who said that the truck was moving as the Orr car approached the bridge. In view of the fact that the evidence conclusively shows that the Orr car traveled faster than the McHardy car in approaching the bridge, both contentions could not be true. If the jury believed one of two inconsistent claims, it must follow that it rejected the other. That is all that the above instruction amounted to, and I think it was properly given.
Me. Justice Kogee L. Dell, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.