#### Jolley, Appellee, *v.*Martin Brothers Box Co., Appellant.

(No. 692

Decided October 13, 1950.)

*Messrs. Spidel, Staley <& Hole,*for appellee.

*Messrs. Boggs, Boggs é Boggs*and *Messrs. Mar-chad é Marchal,*for appellant.

*Per Curiam.*

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke County, overruling defendant’s motion for judgment *non obstante veredicto*and from the judgment entered on the verdict in favor of the plaintiff.

Defendant claims that the second amended petition of plaintiff does not state a cause of action; that upon the evidence defendant is entitled to judgment; and that the act of which the defendant was found guilty could not as a matter of law have been the proximate cause of the accident and injuries suffered by the plaintiff.

*373The plaintiff is entitled to the benefit of the most favorable construction of the pleadings and the evidence. *McAtee*v. *W. & S. Life Ins. Co.,*82 Ohio App., 131, 81 N. E. (2d), 225. In determining the questions involved this court is not permitted to weigh the evidence. Section 11601, General Code; *Wilkeson*v. *Erskine & Son,*145 Ohio St., 218, 61 N. E. (2d), 201; *Krueger*v. *S. Brewing Co.,*82 Ohio App., 57, 79 N. E. (2d), 366; 39 Ohio Jurisprudence, 799, Section 182.

In the case of *Wilkeson*v. *Ershine & Son, supra,*the fourth paragraph of the syllabus is as follows:

“Where there is no defect in the statements contained in plaintiff’s pleadings and there is substantial evidence from which a reasonable conclusion might be drawn that defendant was guilty of negligence proximately causing plaintiff’s injury a motion *non obstante veredicto*attacking a verdict in favor of plaintiff may not be sustained. The weight of the evidence is not involved upon such motion. (Section 11601, General Code.)”

We have no difficulty in finding that the plaintiff’s second amended petition states a good cause of action.

The question for determination is whether the defendant is entitled to judgment as a matter of law. The plaintiff charged three specifications of negligence, to wit: First, that the defendant operated its two tractor-trailers across the center line and on the wrong side of the highway; second, that the defendant’s tractor-trailers were driven at a high and dangerous rate of speed, considering the width, surface and condition of the highway, to wit, at a speed of 50 miles per hour; and, third, that the second tractor-trailer was being operated at a distance in the rear of the first tractor-trailer which was closer than was reasonable and prudent, with due regard for the speed of such tractor-trailers, the weather, the condition of the highway, width thereof and the traffic *374on the highway, to wit, at a distance of 50 feet.

The defendant charged the driver of the automobile iii which the plaintiff was an occupant with excessive speed.

There is a conflict in the testimony as to the speed of the automobile in which the plaintiff was an occupant and of the two tractor-trailers of the defendant company, the position of the tractor-trailers and automobile on the highway at the moment of impact, the distance maintained between the two tractor-trailer outfits, and the manner in which the automobile collided with the second tractor-trailer. The plaintiff and defendant had at the time of trial, and still have, different theories as to the manner in which the collision occurred. Both direct and circumstantial evidence was admitted in support of the two contentions. There is circumstantial evidence to support plaintiff’s claim from which a conclusion might reasonably be drawn that the defendant was guilty of negligence proximately causing plaintiff’s injuries.

The defendant submitted several interrogatories. Interrogatory No. 1 is as follows:

“Do you find that the defendant was guilty of any act or acts of negligence which directly and proximately caused the collision and the injuries' claimed by plaintiff?” The jury answered, “yes.”

Interrogatory No. 2 is as follows: “If your answer to interrogatory No. 1 is ‘yes’ designate below such act or acts of negligence.” The jury answered, “Driving at an excess of speed. Driving second truck too close to first truck.”

Interrogatory No. 3 is as follows: “If your answer to interrogatory No. 1 is ‘yes,’ do you fmd on the part of the plaintiff, Dale E. Jolley, any act or acts of negligence causing or contributing to cause the collision and the injuries claimed by plaintiff?” The jury answered, “no.”

*375Interrogatories Nos. 4 and 5 requested the jury to answer whether or not the drivers of the two tractor-trailers were guilty of any act or negligence directly and proximately causing the collision and injuries to the plaintiff. The jury answered “yes” to both of these interrogatories.

The fact that the jury failed to find, in answer to interrogatory No. 2, in favor of the plaintiff upon the first specification of negligence, to wit, that the tractor-trailers were operated across the center line and on the wrong side of the highway, is not inconsistent with a verdict for the plaintiff. The first interrogatory required the jury to find whether the defendant was guilty of any acts of negligence which directly and proximately caused the collision and injuries claimed by the plaintiff. The second interrogatory required the jury to designate *such act or acts*of negligence. Both interrogatories involved the element of proximate eause. The answer to interrogatory No. 2 supports the second and third specifications of negligence as alleged in the second amended petition, either of which is sufficient to support the verdict.

It is contended by the defendant that since the jury failed to find, in answer to interrogatory No. 2, that the defendant’s tractor-trailers were operated across the center line and on the wrong side of the highway, as charged in the first specification of negligence, the defendant was entitled to judgment as a matter of law on the ground that the second and third specifications cannot be considered as the direct and proximate cause of the accident and injuries to the plaintiff. It does not necessarily follow that the jury found that the defendant was operating the tractor-trailers at all times on the right, side of the center of the highway. True, a specification of negligence on which the jury fails to make a finding is tantamount *376to a finding against the party which has the burden of proof. *Masters*v. *N. Y. C. Rd. Co.,*147 Ohio St., 293, 298, 70 N. E. (2d), 898. However, the second interrogatory, as. submitted, required the jury to state the acts of negligence of which the defendant was guilty which were the *proximate cause*of plaintiff’s injuries. The jury may have concluded that the tractor-trailers of defendant were being operated across the center line and on the wrong side of the highway but that this act of negligence was not the proximate cause of plaintiff’s injuries.

The verdict can and must rest upon the answers to the interrogatories as given, which are sufficient to support the verdict. We cannot agree that, assuming there was evidence to justify the finding reached by the jury, the negligent acts of which the defendant was found guilty could not as a matter of law have been the proximate cause of the accident and the injuries to the plaintiff. What was the proximate cause was a question for the jury, since different inferences may be drawn from the evidence submitted. 29 Ohio Jurisprudence, 742, Section 207.

The jury found, in answer to interrogatory No. 3, that the plaintiff was not guilty of any act or act;s of negligence causing or contributing to the cause of the collision and plaintiff’s injuries. Any acts of negligence of which the driver of the automobile was guilty could not be imputed to the plaintiff as a matter of law.

We fail to find prejudicial error in the action of the trial court in overruling the motion for judgment *non obstante veredicto*and entering judgment on the verdict., We find no assignments of error well made.

*Judgment affirmed.*

Miller, P. J., Hornbeck and Wiseman, JJ., concur.