(dissenting).
.. , a -c I respectfully dissent. The form of % A. , „ , . . Special Issue Number 1 quoted m the . . . T ,. . . . , .. „ ma;jonty °Pimon was, I think, misleading • i y* t 11 j_ ti vr and permitted the jury to find that Mc- . Manus, defendant s driver, was negligent . ’ . , ’ , « . simply because he made a left turn when J , ,. ,, , ... such movement could not be made with „ ... . . , ... ^ ístraM ttaffact i e dem°nstrated that tact, 1. e., the move ment could not be made with safety. .. .. , . . , . , The jury could easily be misled into treating that instruction as equivalent to ^|ie direction of a finding that defendant’s driver was guilty of negligence. Defendant’s able counsel did his best to Preserve his client’s rights by clearly and specifically ca ling to the attention of the trial court the error m the Special . I GQJip 1
Rule 49(a), Federal.Rules of Civil Procedure, 28 U.S.C.A., permits “a special verdict in the form of a special written finding upon each igsue of fact.-> In this case ^ jury answered “yes” to an issue submitted in the alternative; “Do you find * * * McManus guilty of negligence in any of the following respects: (a) * * * failure to keep a proper *341lookout * * *, or (b) * * * turned * * * left * * * at a time when such movement could not be made with safety, or (c) * * * made a lefthand turn without first signalling his intention to do so.” The jury’s verdict gave no indication of which alternative, (a), (b) , or (c), it found to be true.
The conduct described in (a) [“failed to keep a proper lookout”] or the conduct described in (c) [“made a lefthand turn without first signalling”] was negligence per se. It seems to me that the plain meaning of (b), when read with (a) and (c) and the remainder of the instruction, is to define conduct which in and of itself constitutes negligence. My brothers say not. They say that: “Giving Issue No. 1, as a whole, a down to earth construetion, we cannot believe that the jury was misled. Paragraph b asks the jury to make a finding on the essential and specific element of time of turning.” I do not agree. With deference, that construction of (b) seems to me an artful and finespun one which might occur to a skillful legal mind, but not the plain and ordinary meaning of the words as a jury of laymen would understand them,
Indeed, the original brief filed on behalf of plaintiffs-appellees undertook to justify (b) as describing negligence per se.
“Section 68(a) of Art. 6701d has been held by Texas Courts of Civil Appeals to impose a specific duty upon motorists, not to turn unless the movement can be made with safety. Bergeron v. City of Port Arthur, 264 S.W.2d 769, Tex.Civ. App.1954, (error ref. N.R.E.), was a case in which the jury found that plaintiff turned when such movement could not be made with safety. The court held that such finding established negligence per se.”
The contention that a violation of the statute constituted negligence per se was elaborated in appellees’ supplemental brief filed May 5, 1958.
However, in a later supplemental brief filed May 9, 1958, counsel for appellees, with commendable candor, called to our attention the very recent cases of Williams v. Price [Tex.Civ.App.], 308 S.W. 2d 185, and Booker v. Baker [Tex.Civ. App.], 306 S.W.2d 767, and conceded that those cases establish “that, at least where the facts raise an issue of excuse for the statutory violation, the jury must also find that the defendant' (or other party turning left) was negligent in that respect. * * * In view of these decisions our previous statements to the ef-feet that a violation of Sec. 68(a) is negligence per se are probably too broad, The submission to the jury must include the element of negligence, a standard based upon the conduct of the ‘ordinary, prudent man.’ ”
When plaintiffs-appellees’ counsel themselves thus frankly concede that they misunderstood the effect of the statute, how can we justify a holding that the special issue tracking the language of the statute, without further explanation, did not mislead the jury?
My brothers cite Texas decisions authorizing the submission of issues in the language of the statute itself. Those cases are not helpful in the independent federal system of administering justice, an essential characteristic of which “is the manner in which, in civil common-]aw actions, it distributes trial function between judge and jury and, under the influence — if not the command — of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury.” Byrd v. Blue Ridge Cooperative, 1958, 356 U.S. 525, 537, 78 S.Ct. 893, 901, 2 L.Ed.2d 953. Here we are governed by Rule 49(a), Federal Rules of Civil Procedure, and by the recent sound construction of that rule by this Court:
“This charge was clearly inadequate. Rule 49(a), Federal Rules of Civil Procedure, permits submission of special interrogatories to juries only of issues of fact. If the question is a mixed question of fact and law, it may be submitted only if the jury is instructed as to the legal standards which they are to apply.”
Jackson v. King, 5 Cir., 1955, 223 F.2d 714, 718. See also, Scarborough v. Atlan*342tic Coast Line R. Co., 4 Cir., 1951, 190 F. 2d 935; Feldmann v. Connecticut Mut. Life Ins. Co., 8 Cir., 1944, 142 F.2d 628; Carpenter v. Baltimore & O. R. Co., 6 Cir., 1940, 109 F.2d 375.
The general definition of negligence by the district court (see footnote 2, ma-jorit'y opinion) did not remove the misleading defect from the special issue, The jury would probably still believe that the conduct described in (b) constituted negligence per se
Convinced that Issue Number 1 was so misleading as to deprive the defendant-appellant of a fair trial, I respectfully dissent.
. “The defendant excepts to Special Issue Number 1 contained in the Court’s charge, in that it contains the question or issue as to whether or not the truck driver was negligent when he turned his vehide from a direct course and moved his vehicle left upon a roadway at a time when such movement could not be made with safety. This question is too general - and places too big a burden upon the defendant and permits the jury to speculate as to any act or conduct which they might consider as being negligence on the part of McManus in turning his vehiele. .
“For example, if I am crossing an intersection and have a green light, and another automobile coming to the intersection, that is supposed to stop at the red light, suddenly bursts into the intersection and collides with my automobile under circumstances where I am entirely innocent of any negligence, then, in that event, it must be said that I was crossing the intersection at a time when such movement could not be made with safety, and so, in that case, with Me-Manus, the mere fact that there was an accident shows clearly that the movement could not be made with safety, and the question does not ask the jury what, if anything, McManus did that was negligent when he moved his vehicle to the left side of the roadway in making a turn from Walnut Street into San Saba Street, and since McManus was turning at an intersection, at a point where he had a right to turn, and was not required to anticipate that the driver of the automobile would violate the law. and attempt to pass him in the intersection, when getting over on the north side of Walnut Street, it is permitting the jury to say that for some reason, which they imagine in their own minds, that he was negligent, merely because there was an accident, and it suggests to the jury that McManus may have been negligent because the turn could not be made with safety, even though he was entirely innocent of any negligence prior to that time, and it is, in effect, submitting the case to the jury in one question, by asking was he, McManus, guilty of negligence in having the accident.”