I concur in the affirmance of this case but for a reason entirely different from that stated in the majority opinion.
I do perceive that assumption of the risk in this case could constitute a defense entirely separate and apart from contributory negligence. I do not think that it is necessary to determine whether or not the parties were on a joint venture, and I seriously doubt that the evidence is sufficient to make an issue of this relationship between Morris and Kessell. A reading of J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W. 2d 176, leads me to an entirely contrary construction than that given in the majority opinion. I construe that case to make the negligence of the driver imputable to his passenger if the passenger assumes that risk. In that case we approved the reduction of the recovery of a passenger from a third-party driver by the percentage of his host driver’s negligence. In other words, the passenger was held responsible for the hazard he assumed, i.e., that portion of total fault constituting the proximate cause of his own damages attributable to his host. The real effect of the majority opinion would be to overrule the cited case without saying so. It seems to me that the rule is a sound and just one. We necessarily construed the comparative negligence statute in adopting the rule in the cited case and I would not overrule it. Certainly it could not be said that there was assumption of the risk of negligence of Hodges, an unknown third party, the hazards of which could not have been known or anticipated by Kessell.
This appeal is actually taken from a judgment in two cases. Louis Kessell, the passenger, through his father and next friend, sought recovery against the estate of Willard Hodges who was the driver of the vehicle which collided with that in which Kessell was a passenger. An answer and cross complaint were filed by the estate of Hodges. Separate suits were brought by Springdale Motor Company, Inc. and Randy Morris against the Willard Hodges estate. On motion of the administrator of the Hodges estate, three separate causes of action arising out of this collision were consolidated for trial. The jury made the following answers to interrogatories submitted by the court.
‘ ‘ INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that the deceased, Willard Hodges, was guilty of negligence which was a proximate cause of the accident in question?
ANSWER: Yes.
INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that Randy Morris was guilty of negligence which was a proximate cause of the accident in question?
ANSWER: Yes.
INTERROGATORY NO. 3: Using 100% to
represent the total fault or negligence, what percentage of fault or negligence do you find to he attributable to each of the following?
ANSWER: Willard Hodges 44%
Randy Morris 56%
INTERROGATORY NO. 4: Do you find from a preponderance of the evidence that Louis Kessell was guilty of negligence which was a proximate cause of any damages which he may have sustained?
ANSWER: Yes.
INTERROGATORY NO. 5: Using 100% to represent the total fault or negligence, what percentage of fault or negligence do you find to be attributable to each of the following?
ANSWER: Willard Hodges 75%
Louis Kessell 25%
INTERROGATORY NO. 6: Do you find from a preponderance of the evidence that Louis Kessell assumed the risk of riding in the automobile driven by Randy Morris?”
The jury affirmatively answered that Kessell was guilty of negligence and also assumed the risk of Morris’ negligence, but they found that the total fault or negligence attributable to Mm amounted to 25% and that attributable to Hodges amounted to 75%.
It seems clear to me that the jury found that Kessell’s total contribution to bis damages by assumption of the risk and negligence amounted to only 25 % and, thus, justified the court’s action. This is a finding in the case between Hodges and Kessell that is inconsistent with the finding on the cross complaint of the administrator of the Hodges estate against Bandy Morris, if Morris’ negligence is, in effect, to be imputed to Kessell. Inconsistency of verdicts is not a ground for reversal. Rudolph v. Mundy, 226 Ark. 95, 288 S.W. 2d 602; Milum v. Clark, 225 Ark. 1040, 287 S.W. 2d 460; Brown v. Parker, 217 Ark. 700, 233 S.W. 2d 64; Leech v. Missouri Pacific R. Co., 189 Ark. 161, 71 S.W. 2d 467.
I would affirm tbe judgments of tbe trial court on tbe inconsistent verdicts.
I am authorized to state that George Bose Smith and Brown, JJ., join in this concurrence.