Gamble v. Lewis , 227 Ind. 455 ( 1949 )

CONCURRING OPINION I concur in the result reached in the prevailing opinion in this case. I think the judgment should be reversed and a new trial granted because of error in refusing to give instruction number 4 requested by appellant. I cannot agree, however, with that portion of the prevailing opinion which holds that the only reasonable inference to be drawn from the conduct of appellee and the facts appearing in this appeal is that his negligence was a proximate cause of the collision as a matter of law. I think that reasonable men might differ about this and that whether or not, under all the facts in the case, appellee's conduct in getting 18 to 24 inches to the left of the center of the road for a few seconds was a proximate cause of the injury is for the jury to decide. Jones v. Cary (1941), 219 Ind. 268,37 N.E.2d 944, which is cited in the prevailing opinion, is distinguishable from the case before us. In Jones v. Cary,supra, the appellants drove to the left and on to the left hand side of the road and the accident occurred upon their left hand side of the road. In the situation before us, however, the appellee was on his right side of the road at the time of the collision and the appellants were on their wrong side of the road at the time of their collision. Under such circumstances, I think the question of proximate cause should be left to the jury and this court should not weigh the evidence and decide that question.

Starr, C.J., concurs in this opinion.

NOTE. — Reported in 85 N.E.2d 629.