By this diversity action appellant seeks to recover damages for negligent medical care and treatment received by her following an automobile accident. The question presented is whether her right to such recovery has been barred by virtue of her having released the driver of the automobile.

In the district court the ease was assigned to Judge John F. Kilkenny. In the pretrial order the facts are stated as follows:

On November 27, 1957, plaintiff signed a document entitled “Release of all Claims,” which provided in part as follows:

The issue as to the scope and effect of the release document was segregated for trial and determination of this issue was referred to Judge Gus J. Solomon. Upon consideration of the legal problem presented, Judge Solomon ordered a hearing upon the question of intention of the parties in the execution of the release. That hearing was had before Judge Kilkenny, the parties stipulating that Judge Solomon might use a transcript of the testimony taken at the hearing.

The only witnesses testifying with respect to intent were appellant and her brother. Judge Solomon concluded that appellant had “failed to sustain the burden imposed upon her to prove an intention different from that clearly expressed in the document itself.” Judgment was rendered in favor of appellees, from which this appeal is taken.

Upon this appeal the parties differ in their construction of Oregon law as bearing upon the legal effect of the release. In this respect, we agree with the views and reasons of Judge Solomon as expressed in his opinion of December 10, 1959, denying defendants’ motion for dismissal and ordering a hearing upon the question of intent. He stated:

The issue presented by this appeal, as we view it, is thus whether the court was in error in concluding for the reasons given that appellant had failed to meet the burden of establishing an intent different from that “clearly expressed” in the release document.

Appellant testified that her brother had carried on negotiations with Locke’s insurance carrier. She received an offer of settlement in the sum of $4,250 and telephoned her brother, who advised her to accept it:

With reference to intent, her testimony was as follows:

Appellant’s brother testified that his sister had entrusted settlement of her claim to him, that he understood Locke’s insurance coverage to be limited to $5,000 and his interest was in securing as much of that amount as he could. He testified:

In our view, the failure of the appellant to testify explicitly, whether or not she had read and understood the language of the release document, is not sufficient in itself to constitute a failure of burden of proof. We may assume that she read the document before signing it. The district court appears to have proceeded upon the assumption that to the lay reader the language of the release “clearly expressed” an intention to release these appellees; that had the document been read the fact that these appellees had been released would have been clearly apparent; that her brief testimony as to intent was incredible in absence of testimony explaining its inconsistency with the intent so expressed in the document.

We do not regard the document as so clear in its coverage as to render incredibly inconsistent testimony as to a contrary intent. The question is the clarity of the document to this appellant, knowing what she knew as to who the insured was and what the policy limits were. Under these circumstances, the document’s apparent confinement of the release to a “certain accident, casualty or event which occurred on or about the twenty-fifth day of May, 1957, at or near Mitchell, Oregon, * * * ” might very well to this layman have excluded a release of acts of negligence subsequently committed in a hospital in Prineville.

The district judge’s conclusion that appellant had failed to meet her burden of proof was then apparently based, at least in part, upon the incredibility of appellant’s testimony. This in turn was based not upon demeanor but, at least in part, upon the judge’s view that the release of the appellees was so clearly expressed in the written instrument as to inherently require explanation. For the reasons given, we do not find an inconsistency of such a degree as to inherently require explanation. Having no way of knowing to what extent this lack of explanation bore on the decision of the district court, we deem a remand appropriate.

Reversed and remanded with instructions that judgment upon the segregated issue be set aside and for further consideration and determination of that issue upon the present record in the light of this opinion.