The opinion
Mr. Justice Culver,
joined by Justices Griffin, Greenhill, and Hamilton, dissenting.
Admittedly A. B. C. Stores, Inc. v. Taylor, 136 Texas 89 , 148 S.W. 2d 392 (1941) is directly in point and supports the result reached by the majority. However, I would expressly depart from that holding, as I think this court has done by implication in Little Rock Furniture Mfg. Co. v. Dunn, 148 Texas 197 , 222 S.W. 2d 985 (1949), and apply the rule therein set out. While the facts were not analogous to those in the present case, yet the rule there stated is broad, comprehensive and admits of no misunderstanding. We said in Little Rock Furniture Co. v. Dunn: “To require a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between the answers must be such that one answer would establish a cause of action or defense, while the other would destroy it.” This rule had formerly been announced by this court in Pearson v. Doherty, 143 Texas 64 , 183 S.W. 2d 453 (1944). In that case we *431 approved this formula as laid down in Howard v. Howard (Texas Civ. App.), 102 S.W. 2d 473 , writ refused, namely: “The test is such [a] case is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.”
In the case before us the jury found that (1) the plaintiff was negligent and the negligence a proximate cause; (2) that the defendent was negligent and that negligence was the proximate cause; (3) that the collision was an unavoidable accident. Applying the rule then, if we disregard the finding of unavoidable accident and consider the rest of the verdict, the judgment would go against the plaintiff. If we disregard the jury’s findings of negligence judgment would still be be rendered against the plaintiff.
I think this is not only the law as decided by this court but it is sound common sense. Here the plaintiff has lost both on the ground of contributory negligence and on the issue of unavoidable accident. While both findings under the charge of the court would not be warranted, it would seem altogether reasonable that one or the other must be correct.
The majority says that the Little Rock rule cannot be applied because if we disregard the finding of plaintiff’s contributory negligence there remain the conflicting findings of the defendant’s negligence and that the collision was the result of an unavoidable accident, and in such a case a judgment could not be rendered for the plaintiff nor for the defendant. While we are concerned with three separate findings, actually the conflict consisted in the findings that both parties were negligent and that neither party was negligent. So that I think the Little Rock rule is applicable in principle and in sound reasoning.
If the trial court had acted under the provisions of Rule 295, Texas Rules of Civil Procedure, before retiring the jury to reconsider, he would have pointed out that the collision could not be unavoidable if either party were guilty of negligence and that on the contrary neither party could be guilty of negligence if the collision were unavoidable. The jury would then resolve the conflict either by finding that there was no negligence on the part of either party or that the collision was not an unavoidable accident. To me it would seem wholly unreasonable that the jury would do otherwise. In either event the defendant would have prevailed and the plaintiff could not recover.
*432 The petitioner argues that if the jury had been retired to consider the conflict they might have found only that there was no contributory negligence on the part of the plaintiff. There would remain then, she says, the conflict between unavoidable accident and negligence on the part of the defendant and had the court returned the jury again for further consideration they could have eliminated that conflict by finding that it was not an unavoidable accident, thus eventually resulting in a verdict for plaintiff. While such a course would be within the realm of possibility, it does not accord with probabilities. The fact that the petitioner did not move for the retirement of the jury to resolve the conflict would indicate that she had no confidence in that outcome.
So it seems to me nothing would be gained either from a legal or equitable standpoint by reversing this case to be tried over and thus afford the plaintiff another opportunity to obtain a jury verdict in her favor when in a fair trial the results have gone against her heretofore.
I would affirm the judgments of the trial court and the Court of Civil Appeals.
Opinion delivered November 30,1960.
Rehearing overruled December 31,1960.