From that part of the opinion which finds reversible error in giving the fifth paragraph of the charge, and in withholding the second and fourth instructions requested by appellant, I feel constrained to dissent.
The third paragraph of the charge submitted to the jury the state of case which would warrant a recovery in behalf of appellees, and required the jury, before returning a verdict in their favor, to find that appellant had been guilty of negligence in permitting the use of a defective and dangerous bridge on its road; that the deceased brakeman, James L. Moore, did not know, and could not by the use of reasonable diligence have known, of the condition and location of this bridge prior to the accident; and that, while in the discharge of his duty as brakeman, he received the fatal injury, without fault or negligence on his part; otherwise, to find for appellant. The seventh paragraph of the charge placed the burden of proof upon appellees to thus make out their case.
The answer of appellant, and not the petition of appellees, put in issue the existence of the rule which prohibited brakemen from standing upright on cars while passing through truss bridges; and also the fact that deceased not only was chargeable with knowledge of this rule, but that he had actual knowledge thereof. These facts were clearly established by the uncontroverted testimony offered in behalf of appellant.
In giving the charge complained of, the court but submitted the issues directly and positively made by the pleadings and evidence on the part of appellant; and while this charge might properly have assumed the existence of the rule, as well as deceased's knowledge thereof, I know of no statute or principle which requires a trial judge in this State to inform the jury that given facts are established by the evidence, but his duty ends with a plain statement of "the law arising on the facts." Rev. Stats., arts. 1316, 1317.
Expressions may be found in the opinions of our Supreme Court in several cases, beginning with that of Wintz v. Morrison,17 Tex. 372, to the effect, that where there is no conflict in the evidence, and no room to doubt or hesitate as to a matter of fact in issue, the judge *Page 298 in his charge ought not to assume that it is or may be doubtful. I do not understand that this rule is violated when the judge instructs the jury that they may find a fact which the evidence clearly establishes, but only when the charge authorizes them to find the opposite of that which is so established. In the former case he states the law arising on the facts; in the latter he does not.
An examination of the case of Wintz v. Morrison, supra, from which these expressions have been mainly taken, will disclose that the Supreme Court in that case had under consideration the action of the trial court in refusing special charges which requested the submission to the jury of a theory which was not only without evidence to support it, but was contrary to the undisputed testimony. To further illustrate: if, in this case, the court had instructed the jury to find against appellant's defense, in case they should find that deceased was ignorant of the rule of the company, or by the use of reasonable diligence could not have acquired knowledge thereof, the principle above enunciated would have been disregarded; but in submitting the defense alleged, on the hypothesis of both the existence and knowledge of the rule as facts to be found by the jury, there was no assumption that such facts were or might be doubtful.
By observing this distinction it will be found, I think,that the several cases cited in the opinion dissented from, in support of the well-established rule, that it is error to submit in the charge an issue not raised by the evidence, are entirely in harmony with the view here expressed. The charges condemned in these cases, including Railway v. French, and Sanger Bros. v. Henderson, of which special mention is made, stated the law arising upon a state of case, either as ground of recovery or defense, of which there was no proof, or, if proven, which had not been alleged.
While the law only requires the trial judge to submit controverted issues of fact, it does not follow that, because it is error to submit a theory at variance with the undisputed facts, it would be reversible error to submit a theory of the case in accordance therewith. It may be conceded that there was no necessity for appellant to have alleged or proven the knowledge on the part of its brakeman of this rule of the company, nor that the court should have submitted this fact to the jury; but it does not follow that, because appellant unnecessarily alleged and proved the fact, and consequently that the court unnecessarily submitted it to the jury, it is ground for reversing the judgment. When a defendant alleges and proves too much as grounds of defense, it seems to me that it does not lie in his mouth to complain that the court has followed his example and submitted too much to the jury, so long as the evidence places the superfluous fact beyond dispute, and the charge instructs the jury that they may find not against, but in accordance therewith.
I do not understand this fifth paragraph, when read in connection with the rest of the charge, and in the light of the evidence, as having *Page 299 a tendency to impose any burden upon appellant which it did not assume in the defensive plea thus submitted; but as I read it, in submitting the existence of the rule, and of James L. Moore's knowledge thereof, the court was but following the facts alleged and clearly proven by appellant, leading up to the real issue intended to be submitted, to wit, whether, if Moore knew of the location of the bridge, or could have known of it by the exercise of ordinary care, his failure to observe the rule contributed to the injury. It seems to me that the jury must have understood this to be the controverted issue upon which they were called to pass.
The charges requested were objectionable, in that they required the jury to find in favor of appellant if the rule was violated by Moore while passing through the bridge in question, irrespective of whether he had knowledge, or was chargeable with knowledge, of the location of the bridge.
That portion of the charge which stated to the jury the requirement of article 4251 of the Revised Statutes, followed the construction placed upon it by the appellant's answer; and if the amendment of 1887 introduced a material change, appellant, perhaps, should not now be heard to complain of the error into which the court was thus led. But however this may be, I am of opinion that, under the facts of this case, the error was a harmless one.
The remaining paragraph quoted, and criticised as subject to the objection that it assumes that a brakeman in the discharge of his duties would have the right to stand on top of the cars, does not seem to me, especially when the context is considered, to merit that criticism. Besides, according to the uncontroverted testimony of the trainmen, this brakeman was in the discharge of his duties standing on top of the car at the time of the accident, and therefore the assumption, if made, was warranted. The rule of the company involved by it did not prohibit brakemen from standing, but only from standing upright, on top of the cars while passing through truss bridges and tunnels.
The only error that I find in the record which would require a reversal of the judgment, is the recovery of damages by the parents of deceased, which seems to me to be without evidence to support it; and if this should be remitted within a reasonable time, to be fixed by the court, I am of opinion that the judgment should be affirmed, though I entertain some doubt as to whether this case, as developed by the proof, properly comes within the rule laid down in the Lane case, 79 Tex. 343. I would also be better satisfied with such a result if the amount of recovery in behalf of the child of deceased had not been quite so large. *Page 300