
    NORTHERN TEXAS TRACTION CO. v. ARMOUR & CO.
    (No. 825-4518.)
    (Commission of Appeals of Texas, Section A.
    Nov. 24, 1926.)
    Trial &wkey;>-355(2) — Judgment for plaintiff on ambiguous verdict held erroneous.
    In action for damages from collision between train and plaintiff’s truck, jury’s verdict on two special issues involving contributory negligence being ambiguous, judgment for plaintiff based on verdict held erroneous.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Armour. & Co., against the Northern Texas Traction Company. Prom a judgment for plaintiff, defendant appealed to Court of Civil Appeals, which ordered judgment reversed and cause remanded. Plaintiff filed motion for rehearing, and pending that motion the Court of Civil Appeals has certified a question.
    Question answered.
    Hugh B.t Smith and Slay, Simon & Smith, all of Port Worth, for appellant.
    Coates & Mastin, of Port Worth, for ap-pellee.
   NICKELS, J.

Prom a judgment allowing recovery for damages alleged to have been sustained as the proximate result of a collision negligently caused by. it, Northern Texas Traction Company appealed. Amongst the assignments presented by it is onfe which charges that the verdict (upon special issues) is too “equivocal, ambiguous, and uncertain” to warrant the judgment. The assignment was upheld by the honorable Court of Civil Appeals, Second District, in an opinion (290 S. W. -) which fully discloses the questions which arose and the bases therefor, and thereupon the judgment was reversed and the cause was remanded. Armour & Co., duly filed its motion for rehearing. The motion is now pending, and that court has certified the question of whether or not its ruling upon the assignment is correct.

Northern Texas Traction Company pleaded that the act of Armour & Co.’s employee in driving the truck into Evans avenue and upon the railway track immediately before the collision, and after he had seen the approaching street car, was contributory negligence. There is evidence to make an issue on the point. In an effort to submit the matter the trial judge, in the eleventh speciafissue, inquired:

“Do you find from the evidence that plaintiff’s truck driver, upon the occasion of the collision, in the exercise of ‘ordinary care’ on his part, as that term has been hereinbefore defined for you, should not have driven the truck into Evans avenue until the defendant’s street ear had passed him? ”

The jury answered, “No,” When the issue was drawn and submitted, the judge thought its language was such as that a negative answer would amount to a finding of contributory negligence. This is shown' by the fact that in a general part of the charge the jury was instructed that—

“The burden of proof is upon the defendant to establish by a preponderance of the evidence * * * the negative of special issues Nos. 11 .and 18,” etc.

It is shown, also, ■ by the submission of special issue No. 24 in this form:

“If you have answered special issue No. 11 in the affirmative, then you need not answer this question, but if you have answered same in the negative, then answer this question: Do you find from the evidence that the failure, if any, on the part of the driver of the motor truck to pass by Davis street to the north thereof, before driving the motor truck out into the path of street cars coming north on Evans avenue, was a proximate cause of the collision in question? ”

This act imports the thought of the judge that an affirmative answer to special issue No. 11 would acquit the truck driver of negligence, and hence the inquiry about proximate cause would become immaterial and improper. Conversely, if the driver was negligent, it became essential that the jury say whether .causal connection existed between that negligent act and the “collision.” The jury answered, “Yes,” to special issue No. 24.

After the verdict was returned, the'trial judge gave a different interpretation to the language used in special issue No. 11 and its relation to the jury’s answer. He then construed the question and answer to mean an acquittal of contributory negligence, for he rendered a judgment which could not be proper, if contributory negligence' existed. To the skilled author, therefore, ambiguity appeared in the language used. Upon consideration by the honorable Court of Civil Appeals the question (special issue) and answer appeared to mean a finding against contributory negligence, for that court said the answer (“yes”) to special issue 24 “was wholly inconsistent with the finding in answer to special issue No. 11 that Pressly” (i. e., the truck driver) “was not guilty of negligence in driving the truck into Evans avenue before the street car had passed him.”

The diversity of judges’ views about what was actually done indicates probable uncertainty as to what was intended by the jury. As to their real intent we can only speculate. Literally, they said we do not “find” at all; but that neutrality was not their purpose is to be inferred from an effort to answer and from the kind of answer given to issue No. 24. Another view (held by the trial judge and by the Court of Civil Appeals) is that the jury intended to find against contributory negligence; but, as a matter of fact, it must have been understood that a negative answer would be favorable to defendant, sinfe the burden of proving that negative was, by the charge, put upon defendant, and to this must be added (against that inference) the fact that some of the elements of contributory negligence were directly found by the jury in its response to issue 24. If inferences may be indulged at all, their weight, it seems to us, is against the thought of the jury’s intent to free plaintiff of the charge of contributory negligence.

But—

“As to the true construction of such a verdict, neither the lower court” nor an appellate court “is permitted to speculate. The verdict must find all the issues made by the pleading in language which does not admit of mistáke. It should be the end and not the continuation of the' controversy.” Moore v. Moore, 67 Tex. 293, 3 S. W. 284.

See, also, G., C. & S. F. Ry. Co. v. Hathaway, 75 Tex. 557, 12 S. W. 999; Mays v. Lewis, 4 Tex. 38; Smith v. Tucker, 25 Tex. 594; Pecos & N. T. Ry. Co. v. Railroad Commission (Tex. Civ. App.) 193 S. W. 770; Riske v. Rotan (Tex. Civ. App.) 84 S. W. 243; Pickerell v. Imperial Petroleum Co. (Tex. Civ. App.) 231 S. W. 412.

We regard th'e verdict as being ambiguous to an extent preclusive of that certainty which ought to be a part of administration of the law. The action of the Court of Civil Appeals in sustaining the. assignment mentioned was correct.

Accordingly, we recommend an affirmative answer to the question certified.

CURETON, C. J. The opinion of the Commission of Appeals answering certified question is adopted, and ordered certified to the Court of Civil Appeals. 
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