concurring in part and dissenting in part.
I concur in the judgment of affirmance. I dissent to that portion of the opinion setting aside the opinion previously adopted in this case. Reference here is made to the earlier opinion for a more detailed recital of the evidence than that contained in the majority opinion.
The majority state that the statement of the case is correct, but disagree with its, conclusions. Two conclusions are set out with which the majority take issue. The majority conclude that there was evidence to go to the jury here as to the questions of plaintiff’s contributory negligence and defendants’ negligence.
The majority recite the evidence in conflict upon which I assume they base their finding of a dispute on these questions. The first one is that defendants’ witnesses do not concede that defendants’ driver entered the highway from the side road without stopping. I agree that there is a conflict in the evidence^ — but it goes to a matter that proves neither negligence nor contributory negligence. Both parties agree that when defendants’ truck entered the highway, it did so on its own side of the road and proceeded east on that side of the road. The negligence proved was that about 75 feet east of the intersection, defendants’ truck suddenly lurched over to the left and in front of the plaintiff’s vehicle. That evidence is not denied by defendants’ witnesses. It stands unchallenged as a fact. Neither is it challenged that when the lurch occurred, it was then impossible for plaintiff’s driver to avoid a collision. That *525negligence of the defendant was, in the language of the majority, “proven without refutation.” Certainly there is nothing in the evidence that thé defendants’ driver did or did not stop when entering the highway which goes to show contributory negligence on the part of the plaintiff.
The next and apparently only other conclusion in the former opinion with which the majority disagree is that which goes to the location of the defendants’ truck at the point of the collision, i e., is there a dispute in the evidence sufficient to go to the jury as to whether or not it was on the north side of the highway? They admit that there is' not “too much certainty” in defendants’ testimony, but yet hold there is a sufficient denial. They do not set out the evidence. They say it was contended in the former opinion that the evidence of tire marks irrefutably fixes the point of collision, and that the theory was that these tire marks-are physical facts which point to a single conclusion or inference. What was said in the former opinion was: “All the testimony is that the plaintiff’s truck was on the north side of the highway well beyond the center line; that it was there before, at and after the impact is conclusively shown by the pictures of the skid marks and the testimony of the" witnesses. There is no evidence to the contrary. Plaintiff’s unit would not and could not have hit the defendants’ truck had it not been on the left or north half of the highway also. Defendant, Milton J. Olson, admitted that the skid marks of his truck first appeared on the north half of the highway, but seemed to have had the theory ‘at the time’ that somehow the impact of the tractor against his truck picked it up and set it over and down on the north side of the highway. Just how that could happen in the face of the undisputed testimony that plaintiff’s tractor was then well to the north of the center is not explained.”
The conclusion in the former opinion rests upon the evidence as to the skid marks and the testimony of the witnesses.
Now, what is the evidence as to the skid marks on the pavement? It is set out in the former opinion as follows: *526“The under-sheriff and the highway patrolman came to the scene at separate times thereafter. They are not contradicted on their evidence as to what was visible. There were dark, heavy skid marks all well over on the north half of the pavement, beginning about 15 to 25 feet west of the point of impact, as they determined it, and continuing to where the trailer turned over and the tractor left the pavement. There were lighter marks beginning at the point of impact and continuing down the pavement to where defendants’ truck left the pavement. They located the point of impact from the skid marks and glass. It was 75 feet east’ of the intersection, and on the north half of the highway. The patrolman made exact measurements. The oiled surface at the point of impact was 21 feet, 9 inches wide. As shown by the skid marks, the right wheels of the defendants’ truck were 8 feet, 7 inches from the edge of the pavement on the south side, and 12 feet, 3 inches from the north edge of the oiled surface, and the left wheels were 7 feet, 2 inches from the edge on the north side.” The majority do not disagree with that statement. It is fully sustained by pictures in evidence taken both by plaintiff’s and defendants’ witnesses. These pictures cannot argue, surmise, evade, or lie. They are not challenged.
Now, what is the defendants’ evidence which the majority state constitutes a denial with “not too much certainty?” First, there is the testimony of Johnson, who was a passenger in defendants’ truck. He neither saw nor heard anything. He testified that they turned onto the highway and went about 100 feet when “our truck went up in the air,” came down and started to skid. So he puts the collision at the point where they started to skid — and the pictures and the undisputed evidence of the skid marks show that that was well over on the north half of the highway. His own counsel did not ask him what position they were in “at the point of the collision” but rather “what position in the highway you were in.” This relates, if it relates to anything, to a previous “as you were going down the highway” question. He answered: “Well, we was on our side of the *527road, I am sure.” On cross-examination he was asked: “And you are not sure either that this accident happened on the south side of the road, are you?” He answered: “Not positive.” He then was asked about an affidavit he had given, and in answer to whether or not he had given it he volunteered the answer: “We was on our side of the road.” He was not then being- asked as to where he was when the collision occurred. He then admitted that he had given an affidavit that “I don’t know what side of the road we were on although I think we were, on our side.” So I submit that fairly construed, this witness was testifying as to where they were “as you were going down the highway.” He did not deny and was not asked to deny the sudden lurch to the left into the path of plaintiff’s transport.
Engstrom was the driver of defendants’ truck. He was asked his position “at the time you were hit.” His answer was that he was down the highway 75 to 100 feet. He later was asked: “Where were you on the highway?” He answered : “I believe I was on my side.” It was not a statement of fact but a statement of present opinion. On cross-examination he was asked: “You said you believe you were on your side. What makes you believe that?” He then said that there was a hole just before the place where he turned into the highway; that he pulled around that and he did not think it made him go “past the center.” So he clearly was testifying that he was on his own side of the highway when he went onto it — 75 feet before the accident. No one disputes that. He later was shown a “little drawing” and was asked if that was substantially the position of the vehicles “when the accident occurred.” He studied the drawing and said: “Yes, I believe so.” He identified the truck, numbered 1 oh the chart, as his truck. He marked an “x” as -the center of the highway. He admitted that the diagram showed that his truck was over the center. He was asked if that was right and his final answer in all this was: “I couldn’t say if it was.” But he did not say that it was not. He did not deny and was not asked to deny the sudden lurch to the left and into the path of plaintiff’s transport.
*528Next, one of the defendants Olson testified. He was at the scene of the accident shortly after it happened. He observed the skid marks and he took pictures. He was there with the highway patrolman. He was asked if he was able to determine where the impact of the vehicles occurred. His answer was: “Well, at the time I couldn’t quite agree with him” (the patrolman), as to whether the lighter tracks “were our truck, those marks, or not.” He did not say that the marks were not on the north side of the pavement. He just did not agree “at the time” that they were the marks of his truck. He did not even say he disagreed at the time of the trial. The evidence shows without dispute that those marks went from that point right to his truck. He then was asked if there was anything on the highway to tell where the collision occurred. He said yes, there were definite markings where the skidding first occurred and from there on down the highway was littered with wreckage. He was asked on cross-examination : “Did you determine on what side of the highway the collision occurred ?” His answer was: “I would say it wasn’t in the middle — it was practically — it was on the right side of the highway, mostly on the right side of the highway.” He then was asked if it was not plain that the skid marks made by his truck were north of the center. He answered: “From the angle of the skid marks it was a little to the left of the highway — or the center line of the highway, * * * .” He then volunteered the statement that the reason for his disagreement with the patrolman was that “at the time” he couldn’t establish whether the “truck was picked up and then set down at that point and the marks start from there.” He further said that there were “no visible markings we could see at the time as to just what the route was before the impact.” He did not deny that the route from the point of impact was on the north side of the highway. He probably referred to the route of his truck. But there were visible markings which he testified to and clearly showing in the pictures as to the route before the impact of plaintiff’s truck, and they are all *529shown in the pictures and are far to the north of the center of the highway. No one denies the location of those marks and that they were made by plaintiff’s truck. He then said that “The point of impact showed a darker line, but not what you would call a definite skid mark” but a mark made by the tires of his truck. Those marks, without dispute, are shown by the pictures and other evidence to have been on the north side of the highway. So the defendant himself on direct and cross-examination puts his truck on the north side of the highway at “the point of impact.”
The conclusion of the majority is that this evidence is sufficient to raise a jury question, as to whether or not the collision occurred on the north half of the highway. I submit that the location of the point of impact as north of the center line was “proven without refutation.”
It was not held in the former opinion that the tire marks alone were conclusive as to the point of the impact, but it was held that these tire marks, plus the evidence of the plaintiff, plus the admissions of the defendants’ witnesses, denied only by evasive “I think”, “I am not positive” and “I believe” answers, removed that question from the category of an issue to be determined by a jury.
The majority then say that the tire marks are not “uncontroverted facts” but circumstantial evidence to go to the jury. I submit they are uncontroverted evidence of the facts. Apparently the majority mean to say that they are not physical facts. The authorities are to the contrary. The position of tire marks and skid marks has been recognized as important physical facts within the rule that courts will not allow verdicts to stand when they rest upon evidence which is contrary to physical facts and human experience. 10 Blashfield, Cyclopedia of Automobile Law and Practice (Perm, ed.), sec. 6554, p, 237. Skid marks are treated.as physical facts in Jones v. Union P. R. Co., 141 Neb. 112, 2 N. W. 2d 624, cited by the majority. This court has said: “ * * * where the statements of the witnesses are opposed to natural laws and conclusive inferences arising from the undisputed physical facts, there 'is no question *530of weight of evidence, and the latter must prevail.” Varnum v. Union P. R. Co., 112 Neb. 340, 199 N. W. 503.
In Hahn v. Doyle, 136 Neb. 469, 286 N. W.' 389, this court approved an instruction to a jury which stated that the physical facts surrounding an accident were very important, and, if the jury found that the verbal testimony of any witness or witnesses was in conflict with' the physical facts and could not be reconciled therewith, the physical facts should be accepted as reflecting the truth.
Even accepting the majority’s contention that there was a controversy in the parol evidence, I submit that the evidence of the tire marks controls. That plaintiff’s vehicle was on the north side of the highway before, at and after the impact is established by the uncontroverted evidence of the witnesses and the unchallenged evidence of the skid marks as shown by the pictures taken by both the parties. No witness undertook to say that those marks were not made by plaintiff’s truck. In Jones v. Union P. R. Co., supra, we said: “ * * * if but one inference may be arrived at in the minds of reasonable men from an examination of the physical facts, then that inference must be accepted, but if with equal force and propriety an opposite inference or inferences may be drawn the question becomes one for the jury.”
We need not argue here from the premise of a general rule. The Supreme Court of Connecticut has directly considered this question and stated an applicable rule. In Willows v. Snyder, 116 Conn. 213, 164 Atl. 385, that court had before it the effect to be given to evidence of tire marks. It tested them by this rule: “Marks such as those of which evidence was given in this case can become conclusively determinative between conflicting oral testimony as to the circumstances of an accident only when their existence and location are admitted or undisputed.” That court has treated tire marks as physical facts. See Flynn v. Peracchio, 118 Conn. 124, 170 Atl. 926, where the rule in the Willoivs case was referred to as one under which “indisputable physical facts” can be established.
I submit that the existence and the location of these tire *531marks is both admitted and undisputed, and that, standing alone, they are conclusively determinative and, as the Connecticut court .said, are indisputable physical facts. See, also, Missouri P. R. Co. v. Moore, 199 Ark. 1035, 138 S. W. 2d 384, where skid marks made before an accident as some were here, were held to control over the parol testimony of a party contrary thereto. The court there held the parol testimony could not be accepted as substantial evidence in the face of the physical facts — one of which was a skid mark.
The majority seem to hold that under this evidence a jury of reasonable men could properly hold the fact to be that plaintiff’s vehicle without leaving its course on the north side of the highway, reached out to the south side, collided with and picked up defendants’ truck, carried it back to the north half of the highway, set it down and proceeded on its way. May it be said with “equal force and propriety” that such an inference can be drawn from this evidence? I do not agree.