(dissenting) — Lyle Hawley, while riding as a guest passenger in Russell Hawley’s automobile, was fatally injured in an intersection collision giving rise to this litigation. Chester Mellem was the driver of the other vehicle involved in the accident. Both vehicles entered the controlled intersection without stopping and collided midway therein. Neither driver observed the other until an instant before impact.
The administratrix of Lyle Hawley’s estate, asserting negligence on the part of Chester Mellem, initiated this action on behalf of the estate. In this action, Chester Mellem denied any negligence on his part.
Chester Mellem then instituted a separate action against Russell Hawley and wife, asserting negligence on Russell Hawley’s part and seeking recovery for personal injuries and vehicular damage. The Russell Hawleys, represented by *774their own counsel, counterclaimed for damage to their vehicle claiming negligence on the part of Chester Mellem.
Chester Mellem thereafter moved to consolidate the two actions for trial. The motion was granted over objection of the administratrix, and the two actions were tried before the same jury, with the jury instructed to consider them as separate actions and to return separate general verdicts.
In this, the administratrix’ action, the jury returned a verdict for defendant, Chester Mellem. In the action instituted by Mr. Mellem, the jury denied recovery to both parties.
At the time of receiving the verdicts, the trial court expressed the thought that they might be inconsistent, whereupon the administratrix requested the trial court to interrogate the jury as to its intent. Chester Mellem objected, and the trial court thereupon discharged the jury without inquiry. The post-trial motions of the administratrix were denied, and separate judgments were entered upon the respective verdicts. This appeal is waged upon the judgment in the administratrix’ action. Neither party has appealed from the judgment entered in the action instituted by Chester Mellem.
On appeal, it is the contention of the administratrix that the trial court erred in denying her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, upon the basis that the two verdicts are inconsistent and irreconcilable. The gist of her argument is that since the jury denied recovery to both parties in Chester Mellem’s action against Russell Hawley, it perforce found Chester Mellem guilty of contributory negligence proximately causing the accident, which, in the action initiated by the administratrix, would be tantamount to primary negligence rendering Chester Mellem liable, regardless of any negligence on the part of Russell Hawley. This argument emanates from the rule of law that, in an action between a vehicular passenger and a third-party driver, the negligence of the host-driver is not imputable to the passenger, unless the passenger occupies a position of authority or control over the host-driver. Allen v. Walla Walla *775Valley Ry. Co., 96 Wash. 397, 165 Pac. 99; Winston v. Bacon, 8 Wn.2d 216, 111 P.2d 764; Knight v. Borgan, 52 Wn.2d 219, 324 P.2d 797. There is no contention in the instant case that Lyle Hawley exercised any authority or control over Russell Hawley.
In denying the post-trial motions interposed by the administratrix and the assignments of error directed thereto, the trial court and the majority of this court opine that the verdicts are reconcilable upon the premise that the jury could have concluded that none of the parties sustained their burden of proving either of the drivers negligent. In short, it is the position of the trial court and the majority that (a) the administratrix, in this action, and Russell Hawley, on his counterclaim in the Mellem-Hawley action, failed to establish any causal negligence on the part of Chester Mellem; and (b) that Chester Mellem, in the Mellem-Hawley action, failed to establish any causal negligence on the part of Russell Hawley.
I can agree with the trial court and the majority that it is possible the jury could, under the instructions given, have arrived at a conclusion that one or the other of the parties had failed to sustain their burden of proving the opposing driver guilty of any negligence proximately causing the accident. I cannot agree, however, that it is a realistic probability that the jury could have logically arrived at a conclusion that the evidence was insufficient to permit a finding that neither driver was guilty of any negligence proximately causing the accident, for the evidence indisputably establishes the collision involved occurred within the controlled intersection, that one of the drivers entered the intersection against a red light, and that neither driver saw the other until the instant before or at impact.
The conclusion is inescapable that at least one, if not both, of the drivers was or were negligent, and that such negligence was a proximate cause of the accident.
The fact that split-second timing may be hypothesized, with respect to traffic signal changes, or that the evidence was conflicting upon the crucial issue of which driver en*776tered the intersection against the red light, or that the jury may have wished to avoid deciding the issue, simply does not dissolve the established elements of negligence and proximate cause. The ultimate fact that one or both drivers was or were negligent hardly rests in the realm of “guess or speculation,” and a jury should not be permitted to abdicate its responsibility of deciding the issues involved upon the basis that the evidence was “equally balanced.” Cf. Dods v. Harrison, 51 Wn.2d 446, 319 P.2d 558.
In my opinion the verdicts denying recovery to all parties were, therefore, contrary to the establishd facts in the case and, under the circumstances, clearly incompatible.
The jury, too, must have realized, during its deliberations, that its proposed verdicts would be inconsistent with the facts and with the law as contained in the instructions, for it sought clarification. This was denied to it, and I have no quarrel with the learned trial judge’s action in this respect. The fact remains, however, that upon receiving the verdicts the trial judge recognized and pointed out the inconsistency, and was requested by the administratrix to interrogate the jury as to the intent of the verdicts. This the trial judge had authority to do. RCW 4.44.400, .460; Smith v. S & F Constr. Co., Inc., 62 Wn.2d 479, 383 P.2d 300. interrogation of the jury at this point would have either clarified beyond dispute any ambiguities relative to its intent or it would have permitted correction of the apparent inconsistency. Chester Mellem, however, objected to this procedure, and the trial judge acceded to his objection. The jury having been discharged, it is now too late to “second guess” it or to otherwise correct the inconsistency, short of a new trial. Quarring v. Stratton, 85 Wash. 333, 148 Pac. 26.
Chester Mellem asserts, though, that, the actions being separate and severable, the verdicts must be treated as if the actions were in fact tried separately to separate juries. In this he finds support in the rule accepted by the courts of Arkansas, Idaho, Missouri, New Mexico, and New Jersey. That rule is stated in Aragon v. Kasulka, 68 N.M. 310, 312, 361 P.2d 719, as follows:
*777While it is a well-settled principle that verdicts must be consistent, there is no legal requirement of consistency where separate cases are consolidated for trial. In the trial of consolidated cases, absent error in the pleading, proof, or submission of the action, “each case retains its distinctive characteristics and remains separate in respect of * * * verdicts, findings, judgments, and all other matters except the one of joint trial.” 88 C.J.S. Trial § 6; Page v. Hamilton, Mo., 329 S.W. 2d 758; Rudolph v. Mundy, 226 Ark. 95, 288 S.W. 2d 602; Brown v. Parker, 217 Ark. 700, 233 S.W. 2d 64; Baldwin v. Ewing, 69 Idaho 176, 204 P. 2d 430; Paolercio v. Wright, 2 N.J. 412, 67 A. 2d 168; Malinauskas v. Public Service Interstate Transp. Co., 6 N.J. 269, 78 A.2d 268, 272.
I am, however, drawn to the more practical and realistic approach inherent in the reasoning found in the case of Detrixhe v. McQuigg, 316 P.2d 617 (Okla.), and followed in Schweitzer v. Stone, 13 Utah 2d 199, 371 P.2d 201. In rejecting the strictly legalistic doctrine represented by the Aragon approach, the Detrixhe case states (pp. 619, 620):
What is the effect of this anomaly? If these actions had been tried to separate juries the divergent results probably would not present grounds for reversal. The situation then would merely have pointed out a fact inherent in the jury system, that all human institutions lack perfection. But that such a circumstance might not be grounds for reversal where separate juries had been involved is not a persuasive argument for the proposition that one jury may render irreconcilable verdicts in actions consolidated for trial and thereby so obviously demonstrate its disregard of the court’s instructions. The jury has an obligation, it is required to follow the law. Its disposition of an action is not left to the whimsey of the individual members.
Some of the authorities cited in support of the judgments contain a verdict whose inconsistency is more apparent than real and which can be explained logically. Brown v. Parker, 217 Ark. 700, 233 S.W. 2d 64, however, is diametrically opposed to our conclusion. The court’s conclusion in that case is based upon the premise that since consistency is not required of different juries in separate actions being tried separately, there is no re*778quirement of consistency in consolidated actions tried to the same jury. Our answer is that the court did not attach sufficient significance to the basic difference involved— only one jury is hearing the evidence and it cannot at the same moment believe that two totally irreconcilable and inconsistent facts existed. (Italics mine.)
This court has, in fact, inferentially if not directly rejected the strictly legalistic concept of the Aragon line of authority in Maddock v. McNiven, 139 Wash. 412, 247 Pac. 467, and Mitchell v. Rice, 183 Wash. 402, 48 P.2d 949. Speaking of the inconsistency apparent in two verdicts returned in consolidated cases, in the Maddock case, supra, this court said (p. 415):
But there is another ground upon which the order directing a new trial in each case may be sustained, and that is the manifest inconsistency of the two verdicts. It must be remembered that both cases were tried by the same jurors, and the same evidence on the question of negligence and liability was presented in each case. The jury, in finding for respondents in the first case, must have found that the injury resulted from the negligence of the appellants. Inasmuch as it refused to find anything for the plaintiffs in the second case, which rested upon identically the same testimony with reference to negligence as was before the jury in the first case, and inasmuch as the testimony is undisputed that the deceased lived several days after her injury and suffered pain during at least a part of that time, it is difficult to reconcile the two verdicts. If that in the first case is right, then that in the second case would seem to be wrong; and vice versa. It is probable that the trial court was no more able to reconcile these two verdicts than we have been, and, since the same jury brought in both verdicts, it would seem that there is such inconsistency as that the trial court was justified in believing that there was something wrong — a mistake somewhere — and that there had not been a fair trial in one or the other of the cases; which one it would, of course, be impossible for the court to determine.
I would, therefore, hold that where the same jury brings in irreconcilable verdicts in consolidated actions involving similar issues, and the verdicts are not otherwise clarified *779by the jury before its discharge, the actions should be considered as one in passing upon appropriate post-trial motions.
Returning then to the instant case, it would ordinarily be appropriate to grant a new trial as to both actions, for it cannot be said which verdict controls over the other. It can with equal force be argued that the jury erred in making up its verdict in either case. However, neither Chester Mellem nor the Russell Hawleys have appealed or cross-appealed from the judgment in the Mellem-Hawley action and that judgment is not before us for appellate disposition. The parties therein are apparently content to let it stand.
Such being the case, only the cause now before us can be remanded for new trial. This I would do.
Finley and Hunter, JJ., concur with Hamilton, J.
October 15, 1965. Petition for rehearing denied.