On Motion for Rehearing. It is the opinion of the majority of the Court upon motion for rehearing that the judgment entered by the trial court, and heretofore reversed by this Court, should be affirmed.
The facts, as disclosed by the original opinion, show that the accident in question was caused by the collision of the automobiles operated by the appellant and appellee.
Appellant, Schneider, through his appeal to this Court, seeks a judgment for the sum of $1,250 (the amount of damages as found by the jury in his favor) less the sum of $75 (the amount of damages found by the jury in favor of Delavan). As disclosed by the opinion of Mr. Chief Justice SMITH, the judgment of the trial court was reversed and the cause remanded because of the conflict in the findings of the jury.
We are of the opinion that the pleadings of appellant, Schneider, as well as the proof shown in the record, do not present a case under the doctrine of discovered peril, therefore, the findings of the jury upon that theory may be disregarded as immaterial. Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090. In that case it is said (page 1092):
"Immaterial issues answered by the jury may properly be disregarded by the court as surplusage, and not considered by the court in rendering judgment."
The jury found that Delavan was negligent and that such negligence was the proximate cause of the collision and Schneider's injuries. Likewise, the jury found that Schneider was negligent and that such negligence proximately caused the collision and the injuries to Delavan. Under the facts as disclosed by the record, the injuries sustained by appellant and appellee were proximately caused by the collision. Certainly reasonable minds cannot differ that whatever injuries the actors received as a result of the accident were caused by the collision.
It is the duty of the Court to harmonize the findings of a jury, and if such findings may be reconciled so as not to defeat each other, to render judgment thereon. First National Bank v. Rush, Tex.Com.App., 246 S.W. 349. Mere inconsistencies of jury findings is not enough to render such findings in conflict with each other. It is elementary that where the negligent acts of two parties proximately cause injury to them, that neither may recover for his damages. The jury in the present case convicted each of the parties of negligence and found that such negligence proximately caused the collision. It is our opinion that upon such findings the trial court correctly entered a judgment that neither of such parties recover any damages. *Page 826
Accordingly, the motion for rehearing filed by the appellee will be granted, the judgment heretofore entered reversing and remanding the case will be set aside, and the judgment of the trial court will be affirmed, at the cost in this Court of the appellant.