Holmes, J.
The appellees, who are the father, mother, brothers, and sisters and only heirs at law of Kenneth Crapps, deceased, brought this suit against the appellants and Gaddis N. Trest, seeking to recover damages for the alleged wrongful death of the said Kenneth Crapps, resulting from a collision between a GMC truck of the Film Transit, Inc., driven at the time by O. G. Bridges, and a Chevrolet automobile belonging to and driven by Gaddis N. Trest, and in which Kenneth Crapps was riding as a guest.
The trial resulted in a verdict and judgment for the appellees in the amount of $12,500, from which the Film Transit, Inc., and O. G. Bridges appeal. There is no appeal by Gaddis N. Trest.
The collision occurred1 at about 4:30 o’clock on the morning of April 30, 1950, on U. S. Highway 35, about six miles north of Forest. The highway was a black-top highway. It was rainy and the pavement was wet and slippery. The Trest -automobile was proceeding in a northerly direction and travelling at a rate of speed of about 35 miles- per hour. The truck of the Film [131]*131Transit, Inc., loaded with motion picture films, newspapers, and merchandise for delivery in the course of its business, was proceeding in a southerly direction and traveling at a rate of speed of from 40 to 45 miles per hour. As the vehicles approached each other, each dimmed their lights and each was travelling on the right side of the highway. When the vehicles were within about 400 feet of each other, the Trest automobile went off of the pavement on its right side and traveled in a straight line, with its right front and rear wheels about two feet off of the pavement, for a distance of 180 or 185 feet, when it suddenly turned back on the pavement and went across the pavement in the pathway of the. on-coming truck and was struck by the truck and practically demolished, and Kfenneth Crapps was killed.
There was testimony to the effect that Bridges saw the Trest automobile when it first went off of the pavement and that he did not slacken his speed. He testified that he did not know that the Trest automobile was out of control until it was within 30 or 35 feet from him and it was then too late to avoid the collision.
It was the contention of the appellees that Bridges knew, or should have known in the exercise of reasonable care, that the Trest automobile was out of control when it went off of the pavement and that it was likely to cut back on the pavement and precipitate a collision and that he was negligent in failing to take reasonable precaution to slacken his speed and bring his truck under control and avoid the collision. On the other hand, it was the contention of appellants that Bridges was driving the truck at a lawful and reasonable rate of speed and on his right side of the highway and had no reason to anticipate that the Trest automobile would be driven to his- side of the highway and in his path, and that he did not know that the Trest automobile was out of control until he was within 30 to 35 feet of it, and that at that time it was not possible for him to stop his truck or slacken his speed so as to avoid the collision. [132]*132In view of llie fact that this case must he reversed and a new trial granted for reasons hereinafter stated, we do not comment upon the evidence directed to the respective contentions of the parties, further than to say that in the opinion of Justices Hall, Arrington, Ethridge, and the writer of this opinion, the evidence was sufficient to create an issue for the jury on the question of negligence vel non of the appellants, whereas Chief Justice McGehee, and Justices Boberds, Alexander, and Kyle are of the contrary opinion.
According to the views of a majority of the Court, however, the granting' of instruction No. 6 to the appellees constitutes reversible error. This instruction is as follows:
“The court instructs the jury for the plaintiff that, if you believe from a preponderance of the evidence that O. G. Bridges saw, or in the exercise of reasonable care, could have seen that the Trest automobile was not under control immediately prior to the collision, and, if you further believe from a preponderance of the evidence that O. G. Bridges, in the exercise of reasonable care, foresaw or should have foreseen that the Trest automobile, being out of control, would likely proceed into the west lane of Highway No. 35, and that the said O'. G. Bridges negligently failed to stop his said truck or to reasonably slow down in order to enable him to-stop, if failure it was, and that such failure if so it was, proximately caused or contributed to the collision and death of plaintiffs’ deceased, then it is your sworn duty to return a verdict for the plaintiffs against O. G. Bridges and Film Transit, Inc. ’ ’
The majority of the Court are of the opinion that this instruction imposed too great a burden upon the appellants. It told the jury that if they believed from a preponderance of the evidence that Bridges saw, or in the exercise of reasonable care, could have seen that the Trest automobile was not under control immediately prior to the collision, and that being out of con[133]*133trol, it -would likely proceed into the west lane of the highway, and that Bridges negligently failed to stop his truck or slow down, and that such failure caused or contributed to the collision, then they should return a verdict for the plaintiffs. The use of the words “immediately prior to the collision” was calculated to, and no doubt did, lead the jury to construe this language of the instruction as meaning a collision then imminent or impending. Such would be the construction which a jury of practical men might in all reason be expected to give to the language used, and the important consideration, of course, is how the jury may have construed this language and not how a reviewing court may later construe it. Therefore, under the construction which the jury might reasonably have adopted, it could be assumed as true that Bridges saw that the Trest automobile was out of control immediately prior to the collision and that it would likely proceed into the west lane of the highway, yet it would have been humanly impossible in such an infinitesimal period of time to stop his truck or even slow it down in time to avoid the collision. Nevertheless, the instruction imposed upon him the duty to do that which in all human experience was manifestly impossible. Bridges admitted that he knew the Trest automobile was out of control when it was within 30 or 35 feet from him and that he did not then slow down because there was not time. That there was not then time to slow down is obviously true. Yet the instruction imposed upon Bridges the duty to then slow down and for his failure so to do, imposed liability. The effect of the instruction was to require of Bridges the accomplishment of that which was impossible or suffer liability. Since Bridges admitted that he knew the Trest automobile was out of contol immediately prior to the collision and that he did not then slow down, the instruction was equivalent to a peremptory.
It is argued, however, that the error of this instruction [134]*134was cured by the following instruction granted to the appellant:
“The court instructs the jury for defendants, Film Transit and O. Gr.
Free access — add to your briefcase to read the full text and ask questions with AI
Holmes, J.
The appellees, who are the father, mother, brothers, and sisters and only heirs at law of Kenneth Crapps, deceased, brought this suit against the appellants and Gaddis N. Trest, seeking to recover damages for the alleged wrongful death of the said Kenneth Crapps, resulting from a collision between a GMC truck of the Film Transit, Inc., driven at the time by O. G. Bridges, and a Chevrolet automobile belonging to and driven by Gaddis N. Trest, and in which Kenneth Crapps was riding as a guest.
The trial resulted in a verdict and judgment for the appellees in the amount of $12,500, from which the Film Transit, Inc., and O. G. Bridges appeal. There is no appeal by Gaddis N. Trest.
The collision occurred1 at about 4:30 o’clock on the morning of April 30, 1950, on U. S. Highway 35, about six miles north of Forest. The highway was a black-top highway. It was rainy and the pavement was wet and slippery. The Trest -automobile was proceeding in a northerly direction and travelling at a rate of speed of about 35 miles- per hour. The truck of the Film [131]*131Transit, Inc., loaded with motion picture films, newspapers, and merchandise for delivery in the course of its business, was proceeding in a southerly direction and traveling at a rate of speed of from 40 to 45 miles per hour. As the vehicles approached each other, each dimmed their lights and each was travelling on the right side of the highway. When the vehicles were within about 400 feet of each other, the Trest automobile went off of the pavement on its right side and traveled in a straight line, with its right front and rear wheels about two feet off of the pavement, for a distance of 180 or 185 feet, when it suddenly turned back on the pavement and went across the pavement in the pathway of the. on-coming truck and was struck by the truck and practically demolished, and Kfenneth Crapps was killed.
There was testimony to the effect that Bridges saw the Trest automobile when it first went off of the pavement and that he did not slacken his speed. He testified that he did not know that the Trest automobile was out of control until it was within 30 or 35 feet from him and it was then too late to avoid the collision.
It was the contention of the appellees that Bridges knew, or should have known in the exercise of reasonable care, that the Trest automobile was out of control when it went off of the pavement and that it was likely to cut back on the pavement and precipitate a collision and that he was negligent in failing to take reasonable precaution to slacken his speed and bring his truck under control and avoid the collision. On the other hand, it was the contention of appellants that Bridges was driving the truck at a lawful and reasonable rate of speed and on his right side of the highway and had no reason to anticipate that the Trest automobile would be driven to his- side of the highway and in his path, and that he did not know that the Trest automobile was out of control until he was within 30 to 35 feet of it, and that at that time it was not possible for him to stop his truck or slacken his speed so as to avoid the collision. [132]*132In view of llie fact that this case must he reversed and a new trial granted for reasons hereinafter stated, we do not comment upon the evidence directed to the respective contentions of the parties, further than to say that in the opinion of Justices Hall, Arrington, Ethridge, and the writer of this opinion, the evidence was sufficient to create an issue for the jury on the question of negligence vel non of the appellants, whereas Chief Justice McGehee, and Justices Boberds, Alexander, and Kyle are of the contrary opinion.
According to the views of a majority of the Court, however, the granting' of instruction No. 6 to the appellees constitutes reversible error. This instruction is as follows:
“The court instructs the jury for the plaintiff that, if you believe from a preponderance of the evidence that O. G. Bridges saw, or in the exercise of reasonable care, could have seen that the Trest automobile was not under control immediately prior to the collision, and, if you further believe from a preponderance of the evidence that O. G. Bridges, in the exercise of reasonable care, foresaw or should have foreseen that the Trest automobile, being out of control, would likely proceed into the west lane of Highway No. 35, and that the said O'. G. Bridges negligently failed to stop his said truck or to reasonably slow down in order to enable him to-stop, if failure it was, and that such failure if so it was, proximately caused or contributed to the collision and death of plaintiffs’ deceased, then it is your sworn duty to return a verdict for the plaintiffs against O. G. Bridges and Film Transit, Inc. ’ ’
The majority of the Court are of the opinion that this instruction imposed too great a burden upon the appellants. It told the jury that if they believed from a preponderance of the evidence that Bridges saw, or in the exercise of reasonable care, could have seen that the Trest automobile was not under control immediately prior to the collision, and that being out of con[133]*133trol, it -would likely proceed into the west lane of the highway, and that Bridges negligently failed to stop his truck or slow down, and that such failure caused or contributed to the collision, then they should return a verdict for the plaintiffs. The use of the words “immediately prior to the collision” was calculated to, and no doubt did, lead the jury to construe this language of the instruction as meaning a collision then imminent or impending. Such would be the construction which a jury of practical men might in all reason be expected to give to the language used, and the important consideration, of course, is how the jury may have construed this language and not how a reviewing court may later construe it. Therefore, under the construction which the jury might reasonably have adopted, it could be assumed as true that Bridges saw that the Trest automobile was out of control immediately prior to the collision and that it would likely proceed into the west lane of the highway, yet it would have been humanly impossible in such an infinitesimal period of time to stop his truck or even slow it down in time to avoid the collision. Nevertheless, the instruction imposed upon him the duty to do that which in all human experience was manifestly impossible. Bridges admitted that he knew the Trest automobile was out of control when it was within 30 or 35 feet from him and that he did not then slow down because there was not time. That there was not then time to slow down is obviously true. Yet the instruction imposed upon Bridges the duty to then slow down and for his failure so to do, imposed liability. The effect of the instruction was to require of Bridges the accomplishment of that which was impossible or suffer liability. Since Bridges admitted that he knew the Trest automobile was out of contol immediately prior to the collision and that he did not then slow down, the instruction was equivalent to a peremptory.
It is argued, however, that the error of this instruction [134]*134was cured by the following instruction granted to the appellant:
“The court instructs the jury for defendants, Film Transit and O. Gr. Bridges, that if you believe from the evidence in this case that the defendant Bridges was driving his truck south on Highway 35 some 5 or 6 miles north of Forest and that he was driving same on his right hand side of the highway and at a reasonable rate of speed, under the circumstances then existing, and that the defendant, Mr. Trest, was driving north on said highway and the two vehicles were meeting and that the drivers of the two vehicles each dimmed their headlights when they were some distance apart, and thereafter the Trest car was pulled or slid to the right and its two right wheels were off the paved portion of the highway and the car ran some distance with the right wheels off the pavement and practically parallel to the edges of the pavement and that it suddenly ran onto the pavement and across the highway directly in front of the Bridges truck and that Bridges did not realize the car was out of control or in trouble until it was within 30 or 35 feet from his truck and that he then acted as a reasonably prudent person would have acted under the circumstances, it will be your duty to find for defendants, Film Transit and Bridges, and to assess no damages against either of these two defendants. ’ ’
The majority of the Court think this instruction not only did not cure the error of the said instruction No. 6 for the appellees, but that it aggravated the error in that the two instructions are contradictory and conflicting. In the latter instruction, the jury were told that if Bridges did not realize that the Trest automobile was out of control until it was within 30 or 35 feet from the truck and that he then acted as a reasonably prudent person under the circumstances, he was relieved of liability. In the former instruction, the jury were told that if he should have known that the Trest automobile was out of control immediately prior to the collision, his [135]*135failure to take reasonable precaution to stop or slacken bis speed imposed liability. Tbe jury might very well have believed that Bridges did not realize that tbe Trest automobile was out of control until it was within 30 or 35 feet from him, which was obviously immediately prior to tbe collision, yet they were told in instruction No. 6 that if be should have known it, be was held to accountability. Tbe two instructions are, therefore, irreconcilable, and not only afforded no proper guide to tbe jury in arriving at a verdict, but necessarily served to confuse and confound tbe jury. Tbe decisions of this Court condemning tbe giving of contradictory and conflicting instructions are too numerous to require citation.
Tbe majority of tbe Court are unable to say that tbe error heretofore pointed out in said instruction No. 6 and tbe irreconcilable conflict between that instruction and tbe above quoted instruction granted to the appellants did not prejudicially influence tbe verdict of the jury and it follows, therefore, that tbe judgment of tbe court below should1 be and it is reversed and remanded for a new trial.
Reversed and remanded.
McGehee, O. J., and Roberds, Alexander, and Kyle, JJ., concur.
Hall, Arrington, and Ethridge, JJ., dissent.
Lee, J., took no part.