The trial court made the following finding:
". . . that at said time and place defendant W.A. Benton so carelessly and negligently drove and operated said automobile in attempting to pass the car of plaintiff Arthur E. Brewer as to cause the car of said W.A. Benton to cross said highway at said point at an angle and come close to and immediately in front of the car being driven by plaintiff Arthur E. Brewer; that as a result of said careless and negligent driving of defendant W.A. Benton at said time and place it became necessary for plaintiff Arthur E. Brewer to leave said highway, and that his car did leave said highway and collided with a telephone pole and a power line pole; that as a direct and proximate result of said negligence and carelessness of defendant W.A. Benton in driving and operating his said automobile at said time and place, the automobile of plaintiff Arthur E. Brewer was damaged."
In my view the above finding precludes by way of demonstration any other conclusion than the one that the plaintiff was guiltless of contributory negligence. This being so, it was not necessary to declare in the terms of a conclusion that the plaintiff was not guilty of contributory negligence. *Page 117 The finding fully supporting the judgment, the affirmance should be based solely on that ground. I am in accord with the majority of the court in denying the petition, but think it unnecessary to place it upon the power of the appellate court to make findings where the evidence is conflicting.
Preston, J., concurred.