(dissenting).
I disagree with the result obtained by the majority, and also with the process used to reach that result.
The accident occurred on a clear, dry night on a good road, not over-encumbered by traffic. Mora was proceeding downgrade at forty to forty-five miles per hour, in the course of overtaking another vehicle traveling in the same direction. For Mora, the collision occurred on the wrong side of the highway, with a vehicle traveling in the opposite direction. At this point, and there is no dispute, under the Pennsylvania law, a prima facie case of negligence was made out against Mora, and unless he established, i. e., carried the burden of persuasion, that his position on his left side of the highway was attributable to factors which did not include his neglect, he must bear the financial responsibility for the damage caused. The majority finds support for Mora’s exculpation in the conclusion presumed to have been reached by the jury, that Mora’s vehicle skidded. But this is, in my opinion, not the whole picture.
There is no evidence in this case of road conditions to which skidding could be attributed, as in Richardson v. Patterson, 1951, 368 Pa. 495, 84 A.2d 342 and Ferrell v. Solski, 1924, 278 Pa. 565, 123 A. 493, and to that extent those cases, relied upon by the majority, are inapplicable. The rule of those cases, that skidding does not establish negligence, can be of no assistance here. Rather the instant case must be approached from the broader view, whether the circumstances demonstrate lack of neglect. And the only theory pertinent or proposed is that Mora came upon an emergency created by the light-colored ve*202hiele entering into the lane which Mora was traveling.
The error of the majority, in my opinion, is in allowing the “skidding” concept to hog the whole road. It appears clearly from Mora’s own testimony that the so-called emergency which led to the sudden and tremendously forceful application of brakes by Mora was one Which his own negligence brought about. Mora testified and reiterated1 his testimony that he saw the light-colored vehicle turn into and proceed toward him on the center lane. In the face of this obvious danger, and while speeding at forty to forty-five miles per hour, Mora testified he waited for the light-colored vehicle to turn back! On Mora’s own testimony, the two vehicles hurtled towards each other, testing, I suppose, the fortitude and stamina of the operators. Mora did not apply his brakes to decelerate. He did not even remove his foot from the accelerator. Instead, again on his own testimony, he waited, and at the last second “punched” his brakes with all the force he could command — perhaps with more than they could tolerate. If he skidded, then in these circumstances the skidding is not what the Pennsylvania Supreme Court would treat as an . exculpating explanation within the holdings of the Richardson and Ferrell holdings. It was Mora’s plain duty to act immediately to slacken his speed at the very moment he saw the light-colored vehicle turn into the center lane. In Sudol v. Gorga, 1943, 346 Pa. 463, 31 A.2d 119, 120 the Pennsylvania Supreme Court said:
“When [defendant] saw the truck coming down the hill towards him, a few hundreds of yards away, and swerving to his side of the road, it was his duty in the interest of the safety of his passengers to slacken his speed substantially or possibly to stop. * * * A driver facing a dangerous situation as did this defendant cannot escape the just imputation of negligence if he fails, as this defendant did, until the last of many seconds available to him, to take prudent action to avoid it.”
Since Mora’s testimony is unmistakable, the conclusion is inevitable that the jury, if it indeed intended a verdict in his favor, found contrary to the evidence. For this error, only a new trial is the remedy.
Furthermore, it is apparent that the existence of faulty brakes would not be decisive in these circumstances. Also if the brakes were faulty, it was by no means beyond the jurisdiction of the jury to find that Mora failed to establish either that he did not abuse them by his action at the time of the accident, or that he failed to establish, as it was his burden to do, that he had no reason to anticipate the fault. For on this *203score, Mora did not say that his brakes were faulty, but that he did not know what happened. Indeed, the evidence of tire marks on the highway discloses that his brakes held him on a straight course for sixty feet. He introduced no evidence as to when the brakes were tested, or that he himself tested them. He did say that they worked all right before and that he had no trouble with them, but admitted he never had occasion to use them with such force. Since brakes are for emergencies, there certainly was a jury question as to the adequacy of Mora’s conduct. Yet the learned trial judge, perhaps unintentionally took these issues from the jury, by instructing it at the very last,
“if the explanation is to be believed entirely as (Mora) gave it, then the fault was not his because it was a mechanical failure on the part of his brakes, which he had no reason to anticipate.” (App. 98a)
I am of the opinion that these errors are aggravated by the form of verdict elicited from the jury. There is no doubt that the questions submitted to it, quoted by the majority, do not fit the scheme of special determinations of facts contemplated by Rule 49, F.R.C.P. It is observed that this rule specifically limits the jury to findings of fact. Inherent in the device of the special verdict is the severance of fact from the law. It is this very separation which has inspired writers to comment so favorably upon its use.2 3
In the case at bar the questions propounded to the jury were not limited to fact, but required an application of legal principles. The jury was asked to determine whether either defendant was negligent and such negligence was a substantial factor in causing the injury. It is well established “ * * * that whether or not one has been negligent is a ‘question of law,’ i. e., a question whether he has measured up to a legal standard.” Kreste v. United States, 2 Cir., 1946, 158 F.2d 575, 577; cf. Skidmore v. Baltimore & O. R. Co., 2 Cir., 1948, 167 F.2d 54.
The questions submitted to the jury amount to no more than a breakdown of a general verdict, and the answers are obviously in conflict. Perhaps the jury would have understood this simple situation much better if questions three and four (relating to awarding of damages) were conditioned upon the affirmative answer to the first two (relating to negligence). Undeniably, where a general verdict is sought, the jury must be charged as to all of the law. Rule 49(b) so provides. Cf. Jackson v. King, 5 Cir., 1955, 223 F.2d 714, 718. Here the trial court omitted to instruct the jury that the plaintiff’s right of recovery of damages existed only if the jury found the defendant Mora guilty of negligence which contributed to the accident.
I cannot subscribe to the function performed by the majority and by the trial court in selecting which of two conflicting verdicts should prevail. There was patent confusion in the minds of the jurors, upon which they sought, but did not receive, clarification. Moreover, the determination of an award of damages seems to me to be closer, first, to the real intent of the jury as to its verdict, and second, to the special finding of fact intended to be controlling in Rule 49(b).
The verdict of the jury, being inconsistent, could only be cured by instructing the jurors to reconsider, or by the granting of a new trial, and this is in strict accord with Rule 49(b).
Having in mind all of the circumstances related above, I am compelled to conclude, in the interests of fairness and justice, that the District Court’s judgment should be reversed and the cause remanded with directions to grant a new trial.
. Mora testified (App. 42a) that he saw the light-colored vehicle pull into the center lane, and that it did get completely into the center lane. Below I quote his testimony as to what occurred:
“Q. You saw it start out, I guess, on a little angle?
“A. Yes.
“Q. It got completely into that center lane?
“A. Yes. (App. 43a)
* * * * *
“Q. You told us before that there were four cars coming up the hill, and that the one which pulled out to pass, the light-colored car, was the third or fourth in line.
“A. Yes. But in the meantime I was going down the road, I waited for a few seconds, you know, before I put the brake down, with the hope that the car would go back again. I see he don’t pull back again, I see he is not pulling back, I put my brake down.
“Q. In other words, you were both in the center lane and you waited for him to go back?
“A. Yes, because next to me was the car he was supposed to pass. (App. 45a-46a)
* t'fi £ ffi
“Q. He was in the center lane and you were in the center lane ?
“A. Yes.
“Q. You were waiting for each other to go back?
“A. Yes.
“Q. How fast were you traveling, Mr. Mora?
“A. About 40 miles, 45. I never was a fast driver.” (App. 47a)
. Sunderland, Verdicts, General and Special (lí^O) 29 Yale Law Journal 253; Judge Driver, A More Extended Use of the Special Verdict (1949) 9 P.R.D. 495-500; Miller, The Old Regime and the New in Civil Procedure (1937) 14 N.Y. University Law Quarterly Review 209.