Olson v. Elliott

Fowler, J. There was a collision on the highway between two trucks traveling in opposite directions. The plaintiff was driving one truck, which will be referred to as the “plaintiff’s truck/’ and the defendant the other, which will be re *281 ferred to as the “defendant’s truck.” On trial a jury found by special verdict that the defendant driver was causally negligent, (1) with respect to position on the highway; (2) with respect to lookout; (3) with respect to management and control. Precisely the same questions were submitted in respect to the plaintiff driver, and the jury found that he was not negligent in any of said respects. The court changed the answers to the questions covering the defendant’s negligence and entered judgment dismissing the complaint. The only point raised by the appellant is that the court erred in changing the answers to the questions of the verdict because the answers returned by the jury are supported by the evidence. The court is of opinion that the evidence supports the verdict. It is undisputed that the left front of the plaintiff’s truck collided with the left side of.the defendant’s truck. The testimony of the plaintiff, unless contrary to the physical facts, supports the verdict. The trial court held that the proved physical facts show conclusively that when the collision occurred the plaintiff’s truck was partially on its left and the defendant’s truck wholly on its right side of the road, and that this being so the plaintiff was and the defendant was not causally negligent. The physical fact relied on is that marks made on the road by the defendant’s truck from the place of collision to the place where it came to rest were wholly on its side of the road and that marks made by the plaintiff’s truck from the place of collision to the place where it came to rest straddled the center line of the road. The court is of opinion that the evidence is in dispute as to the marks relied on being made by the two cars. Mr. Justice Barlow and the writer-are of opinion that there is no material dispute as to this matter. In this situation the judgment must be reversed with directions to restore the answers of the jury to the questions of the verdict and to enter judgment for the plaintiff. *282 By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to restore the answers of the jury to the questions of the verdict and enter judgment for the amount of dama'ges found by the jury with costs.