The requested instruction reads:
“I instruct you that the laws of the road laid down by the legislature provide:
“ ‘The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clеarly visible and is free from oncoming traffic for a sufficient distance *646 ahead to permit such overtaking and passing to' he made in safety.’
“And if you believe in this case that the plaintiff was traveling behind a motor vehicle and attempted to pass the samе, and that in attempting to pass it is (was) necessary for him to drive to the left of the cеnter of Larrabee Street, and at said time there was an oncoming street cаr within such close proximity as to prevent his truck from passing the preceding truck in safеty, and by reason of him so attempting to pass said preceding truck he came intо collision with the street car which was in such close proximity so that he could not pass in safety, then you are instructed that he was guilty of negligence per se, and if such negligence was the cause of the collision and his resulting injuries, if you find he did receive any injuries, then the plaintiff cannot recover and your verdict should be for the defendant.”
This instruction is abstract. It would imply that the plaintiff drove his truck to the left of the center of Larrabеe Street at a time when there was an oncoming street-car within such close proximity as to prevent his passing the preceding truck in safety. Moreover, the cоurt did charge the jury that if the plaintiff contributed to his own injury “by driving his truck on the left-hand side of the center of Larrabee Street, ’ ’ as charged by the defendant, he could not recover. A careful reading of the proposed instruction clearly shows that it was not а proper one. Such an instruction would authorize a jury to speculate in detеrmining the issues in any given case. It would direct the jurors to decide their case not upоn the facts established by proof, but upon their “belief.”
A case wherein a like situation is presented is the case of
Rugenstein
v.
Ottenheimer,
The second point relied upon by the defendant is in the nature of an alibi. At the сonclusion of the testimony in the case, the defendant moved for a directed vеrdict, upon the ground that the plaintiff had failed to identify the defendant’s truck. The court denied the motion, and, we think, properly so. There is much testimony in the record from which the jury had a right to infer that the defendant’s truck was the truck involved in the accident. Dallas Whittle, one of defendant’s truck drivers, denies that he was the operator of the truck that indirectly caused the accident. He admits, however, that he was at the scene of the accident within a short time thereafter. The accident happenеd at 9:38 a. m., August 3, 1927. First testifying in that regard, he says that he was in the neighborhood of the accident about 9:45 a. m. on that day. Later on, he puts the time at about 10:15 a. m. But the record shows that dеfendant’s truck driver was operating a tractor truck and was hauling pipe of differеnt sizes on the morning in question. Whittle says that he was loaded with about 6 tons of pipe at thе Luekenbaeh Steamship dock at about 9:00 a. m., and that in the front end of his truck he cаrried barrels. A number of plaintiff’s witnesses identified the truck involved in the collision as a truck loaded with pipe and boxes, and some stated that it was loaded with bundles of steel аnd boxes or barrels. At all events, after a careful perusal of the evidencе,
*648
we are satisfied that the court did not err when it denied the defendant’s motion for a dirеcted verdict. A trial court will direct a verdict only when there is a complete absence of proof on some essential issue, or when there is no conflict in thе testimony and it is susceptible of only one construction. Where there is a dispute as to the facts, or where reasonable minds might draw different inferences, the question should he submitted to the jury:
Saylor
v.
Enterprise Electric Co.,
This case is affirmed.
Affirmed. Rehearing Denied.