DISSENTING OPINION. The writer concurs in the result reached in this case, but does not agree with his associates as to the ground upon which the case should be reversed. The majority opinion holds that the 10th paragraph of the court's charge contains affirmative error because it submitted to the jury the question of negligence on the part of the plaintiff. If the plaintiff, knowing the condition of the firebox and boiler, turned water into the boiler at a time when it was reasonably certain that by so doing an explosion would result, then he was guilty of contributory negligence as matter of law, and it would not be necessary to submit the question of his negligence to the jury. But the charge under consideration does not, in my opinion, require the jury to find such state of facts as would make the question of negligence one of law to be decided by the court and not a question of fact to be decided by the jury. If it be conceded that the word "allowed" as used in the charge, conveys the idea of knowingly permitting the water in the boiler to get below the crown sheet of the engine, it does not convey the idea, and the charge nowhere requires the jury to find, that the plaintiff had knowledge of the condition of the crown sheet in other respects. The plaintiff alleged in his petition, and submitted testimony tending to show, that the firebox was not properly constructed and that the crown sheet, radial stays and stay bolts were made of defective material and were out of repair, and that the plaintiff was not aware of those facts. If such was the condition of the crown sheet and other parts of the firebox, it is probable that it would not withstand as high a degree of heat or as much overheating as would a firebox constructed of proper material and in good condition. The term *Page 382 "overheated" does not always convey the idea of certain and obvious danger. If a thing is heated beyond what is usual and necessary, it may be said to be overheated, but it is not made to appear in this case, nor is it a matter of common knowledge, that any and every overheating of the crown sheet, radial stays and stay bolts of an engine boiler, however slight the excess of heat may be, will necessarily, or even probably, cause an explosion and result in harm. Hence, it seems to me that, in view of the first part of the charge referred to merely requiring a finding of high temperature and overheated metal, that it was proper to submit to the jury whether or not the plaintiff was guilty of contributory negligence in turning the water in the boiler and upon the metal in that condition. It may have been dangerous to do so, and so doing may have been the immediate cause of the explosion, but it may also be that the reason why it was dangerous was because of the defective condition of the crown sheet, radial stays or stay bolts, and the plaintiff may not have known of such condition.
Furthermore, it seems to me that the objection to the charge sustained by the majority opinion is of the class overruled by our Supreme Court in Sabine E. T. Ry. v. Wood, 69 Tex. 679; Texas P. Ry. v. Brown, 78 Tex. 397, and Gulf, C. S. F. Ry. v. Hill, 95 Tex. 629. In those cases it is held that an instruction directing the jury, if they find certain facts, to find for the plaintiff or the defendant, as the case may be, is not affirmatively erroneous, although the party complaining may be entitled to a verdict on a finding of one or more of the facts referred to. In Railway v. Brown, supra, the court, speaking through its present Chief Justice, said:
"It is insisted that this charge is erroneous 'because it made it necessary for the defendant to prove both that it was careful and that plaintiff was negligent before it was entitled to a recovery.' But the charge does not assert this proposition. It tells the jury that if the defendant was careful and the plaintiff was negligent, the latter could not recover. This is correct. The proposition is erroneous. The court might properly have gone further and charged in the disjunctive, and have told the jury that if either the defendant was careful or the plaintiff negligent the defendant should have a judgment. This presents an instance not of an erroneous charge, but of a failure to give an instruction which the defendant had the right to demand." In this case appellant did not ask to have the question submitted in any other form.
The cases referred to above have been frequently cited and followed by the Courts of Civil Appeals, as shown by the Texas edition of the Citator. The charge under consideration did not tell the jury that they could not find for the defendant on that phase of the case, unless they found that the plaintiff was guilty of contributory negligence. It merely told the jury that if they found the existence of certain facts, one of which was that an ordinarily careful and prudent person, under similar circumstances, would not have turned water into the boiler of the engine while it was in an overheated condition, then to find for the defendant. Even if the defendant *Page 383 was entitled to a verdict without the jury's finding the latter fact, incorporating that fact in the charge was not a positive error.
The defendant propounded written interrogatories to John Stahmer and several other witnesses. Additional direct interrogatories Nos. 7 and 8 read as follows:
"Additional direct interrogatory No. 7: In this case the plaintiff alleges that the boiler, firebox, bolts, radial stays, taps, threads, stay bolts, crown sheets, sides and flues of G. H. S. A. engine No. 443, which exploded or collapsed near Curry, Texas, January 7, 1907, were old, worn, broken, cracked, crystallized, of inferior metal, improperly constructed, out of repair, defective, dangerous and unfit for use at the time of said explosion. Please state whether you have made such an examination of the remains of said engine, or whether you made such examination of it prior to said accident as enables you to give an opinion, or state as a fact whether or not said allegations are true or false, or whether or not they are in part true and in part false.
"Additional direct interrogatory No. 8: If you have answered yes to the last question, please state whether in your opinion all of said allegations are true or false, and your reasons for so thinking; and, if you think that some are true and others false, please state specifically and in detail which you think are true, together with your reason for thinking same true, and which of same are false, together with your reason for thinking same false."
The answers of the witness Stahmer to these interrogatories were as follows:
"Answer to interrogatory No. 7: I made such an examination of this engine prior to the explosion as to enable me to give an opinion as to the truth or falsity of the allegations in this question.
"Answer to additional direct interrogatory No. 8: In my opinion all of the allegations concerning the firebox, bolts, radial stays, threads, stay bolts, crown sheet are untrue. My inspection of these parts of this boiler showed the same to be in first-class condition and not defective, dangerous or unfit for use; there were no leaks in the boiler at the time of my inspection, which means the boiler was in good condition and ready for service. I refer to the inspection on the morning of January 7, 1907. My reasons for so thinking are, no such defects showed up on inspection. It was my duty to find any such defects and my inspection failed to find them. There was nothing in or on the boiler to indicate such defects."
A number of other questions of a similar nature were propounded to that and other witnesses, and the answers were, in the main, similar in character. The plaintiff did not file any preliminary written objections to the questions or answers, but when they were offered in evidence he interposed the objection that "it was improper and usurping the functions of the jury for the witnesses to make any statements about the truth or falsity of the allegations contained in the plaintiff's pleadings, and that it was improper and usurping the functions of the jury for the defendant's counsel to ask any question about their truth or falsity, that being a matter for the jury to pass *Page 384 upon." The bill of exceptions shows that the objections were sustained, the interrogatories and answers excluded and "the defendant was not allowed to read same in evidence or to read in evidence any part of said interrogatories or any part of the answers to any of them."
It is provided by art. 2289 of the Revised Statutes that when a deposition has been on file one day before the case is called for trial, no objection to the form thereof or to the manner of taking the same shall be heard, unless such objection is in writing and notice thereof is given before the trial commences. The depositions here involved had been on file several months; and therefore, if the objections urged and sustained related to the form or manner of taking the depositions, such objections came too late and should have been overruled. I do not believe that the defendant had the right to ask the witnesses whether or not, in their opinion, the allegations in the plaintiff's petition were true or false, and, in my opinion, it would have been proper for the court to have excluded so much of the answers of the witnesses as stated that the allegations referred to were untrue. But, in addition to that statement, the witness Stahmer and some of the other witnesses gave testimony that was free from that objection. For instance, the witness Stahmer stated, in substance, that he inspected the firebox, bolts, radial stays, threads, stay bolts and crown sheet of the boiler in question, and that they showed to be in first-class condition and not defective, dangerous or unfit for use, and that there were no leaks in the boiler. That testimony was intelligible without reading the interrogatory which elicited it, and, in my opinion, the court erred in excluding it. The objection to the interrogatory by which the testimony was procured relates to the form and manner of procuring the deposition, and while both might have been suppressed by a timely motion in writing, the failure to pursue that course constituted a waiver of any such objection to the testimony. In my opinion the trial court committed error when it excluded the foregoing testimony of the witness Stahmer, and testimony of other witnesses of a similar nature.
In both the 7th and 8th paragraphs of the court's charge the jury were instructed that if they found the existence of certain facts therein enumerated to find for the plaintiff "unless they find for the defendant on the issues of contributory negligence submitted to them." In subsequent and separate paragraphs the court submitted to the jury two issues of contributory negligence, telling the jury as to each issue that if they found the facts therein referred to to return a verdict for the defendant. Appellant urged the objection that the 7th and 8th paragraphs of the charge required the jury, in order to return a verdict for the defendant, to find in its favor upon both of the issues of contributory negligence; whereas, it was entitled to a verdict if the proof sustained either of the two issues of contributory negligence. Whatever may have been the intention of the court in framing the 7th and 8th paragraphs of the charge, in my opinion they are susceptible of the construction suggested by appellant, and therefore, to say the least, are misleading and confusing. *Page 385
Hence I conclude that the trial court committed material and reversible error in excluding the testimony referred to, and in the 7th and 8th paragraphs of the charge given to the jury.
Reversed and remanded.