This record was assigned by the judges to me to write the opinion of the court, which I did, and which opinion I now adhere to.
Article 1859, Rev.St. 1925, provides: "There shall be no reversal on appeal or writ of error, nor shall the same be dismissed for want of form, provided sufficient matter or substance be contained in the record to enable the court to decide the cause upon its merits." This article refers to the action of the court in reversals.
This case should never have been reversed. It is a plain and simple damage suit, where one person ran his truck negligently into another man's automobile and injured him. It is a case in which the negligence is obvious, and where there is "sufficient matter or substance * * * contained in the record to enable the court to decide the cause upon its merits."
The court submitted very fully to the jury the law in reference to traveling the road by motorcars, as follows:
"Question No. 1. Do you find from the evidence that the defendant's truck was, at the time of the collision, driven at a rapid and reckless rate of speed?
"Answer `yes' or `no.' (Answer — no.)
"Question No. 2. If you have answered the foregoing question `yes,' then state whether such driving of the truck was negligence, as that term has been defined.
"Answer `yes' or `no.'
"Question No. 3. Was such negligence, if any, the proximate cause of the collision?
"Answer `yes' or `no.'
"Question No. 4. Do you find from the evidence that said truck was being driven down the middle of the road and without sufficient room to its left for approaching cars to pass on said road?
"Answer `yes' or `no.' (Answer — no.)
"Question No. 5. If you have answered the foregoing question `yes,' then state whether or not such operation of the truck was negligence, as that term has been defined to you.
"answer `yes' or `no.'
"Question No. 6. Was such negligence, if any, the proximate cause of the collision?
"Answer `yes' or `no.'
"Question No. 7. Do you find from the evidence that the driver of the truck failed to apply his brakes and stop his truck in time to avoid a collision with plaintiff's car?
"Answer `yes' or `no.' (Answer — yes.)
"Question No. 8. If you have answered the foregoing question `yes,' then state whether or not such failure to apply his brakes and stop his truck was negligence.
"Answer `yes' or `no.' (Answer — yes.)
"Question No. 9. Do you find from the *Page 150 evidence that such negligence, if any, was the proximate cause of the collision?
"Answer `yes' or `no.' (Answer — yes.)
"Question No. 10. Do you find from the evidence that the driver of the truck, instead of turning his truck to the right, crowded plaintiff's car and did not give plaintiff his half of the road, but continued traveling down the center of the road and on the left side thereof?
"Answer `yes' or `no.' (Answer — yes.)
"Question No. 11. If you have answered the foregoing question `yes,' then state whether or not such manner of operating the truck was negligence.
"Answer `yes' or `no.' (Answer — yes.)
"Question No. 12. Was such negligence, if any, the proximate cause of the collision?
"Answer `yes' or `no.' (Answer — yes.)
"You are instructed that the burden of proof is upon the plaintiffs to establish the affirmative of each and all of the foregoing questions by a preponderance of the evidence.
"Question No. 13. Do you find from the evidence that the plaintiff, E. B. Kincaid, in approaching the defendant's truck, did not turn his car to the right and did not keep the same on the right side of the road and did not give to defendant's truck its half of the road, but continued traveling on his left side of the road until striking defendant's truck?
"Answer `yes' or `no.' (Answer — no.)"
We do not copy the questions after No. 13, as they are not material here.
It is true that appellant requested the submission of a so-called unavoidable accident issue, then asked the court in connection with the special issue to instruct the jury "that an unavoidable accident" is such an unforeseen event, misfortune, or act as is not the result of any negligence or misconduct of either party. Such is error, it was directly adverse to the facts and the findings of the jury. The jury found that the defendant's truck was driven at a rapid and reckless rate of speed, and that the driving of the truck was clearly negligence. It was the proximate cause of the collision, and the driving of the truck was negligence. They found that it was driven in the middle of the road, without sufficient room to its left for approaching cars to pass on said road. They found the driver of the truck failed to apply his brakes and stop his truck in time to avoid a collision with plaintiff's car.
The questions and answers show there was no fact stated that made pertinent the issue of an unavoidable accident, and, when that issue was submitted, it seems to be in keeping with other issues — catching at straws. Such an issue can be introduced in every case of an automobile accident.
The rule is not correctly stated when it is said a defendant is entitled to have submitted every fact pleaded which if found true would exculpate him from liability and may not be deprived of this right through an adverse finding upon some other issue, the answer to which would render him liable. We understand the rule to be that such defendant is entitled to have any material issue of defense submitted, but that theory of the law did not justify, as shown above, the submission of an issue already found by the jury.
The pleadings and the evidence clearly show the reasonable and substantial amount of damages for expenses incurred as the result of the accident. They were sufficiently plead and proved.
It is folly to say that any harm or error resulted by the act of the jury, coming into the courtroom all together and one of the members asking the court, "What does the court mean by the term, at the collision, does that mean at the time of the impact?" which the court answered, "Yes."
What is the difference, under the circumstances, between the oral conversation and a written question? It is too plain that no harm was done nor error committed, and I find no words to express my opinion.
It takes a better scholar than the writer to distinguish the claimed conflict in the answers to No. 4 and No. 10. In No. 4 it is asked, Was the truck driven down the middle of the road and without sufficient room to its left for approaching cars to pass on said road? And in No. 10, it was asked, "Do you find * * * that the driver of the truck, instead of turning his truck to the right, crowded plaintiff's car and did not give plaintiff his half of the road, but continued traveling down the center of the road and on the left side thereof?" These charges harmonize. The first is with reference to appellant driving in the middle of the road, without reference to appellee, but No. 10 asks if defendant, "instead of turning his truck to the right, crowded plaintiffs car and did not give plaintiff his half of the road, but continued traveling down the center of the road and on the left side thereof."
Again reverting to an unavoidable accident, we adopt a part of appellee's argument:
"In the first place the very term `Accident' according to its accepted legal definition conveys the idea of a happening or occurrence which could not have been foreseen. R.C.L. vol. 20, p. 20. If the occurrence could have been foreseen by a reasonably prudent person the happening was not an `Accident.' In this case, the driver of appellant's truck, without doubt, could and should have foreseen the collision, no other conclusion can be logical, and the occurrence was not in any sense of the word an `Accident,' but a collision resulting from some one's negligence, and that some one the jury found to be the driver of appellant's truck. It is not enough to say that because the driver did not think the collision would occur the same could not *Page 151 have been foreseen by him, the possibility of a collision was foreseeable and because the truck driver involved did not believe the same to be probable does not alter the case. If the collision could have been foreseen, as undoubtedly this one could have been by a reasonably prudent person, it is not enough to say that it was not foreseen.
"The true test governing matters of this nature is set forth in the case of Wichita Falls Traction Co. v. Craig (Tex.Civ.App.) 250 S.W. 733, as follows: `The rule is that, unless there is evidence tending to show that the accident in controversy, which is charged to have resulted from the negligence of the defendant happened from some unknown cause, or in a manner which cannot be explained, or under circumstances different from those relied on and constituting a part of plaintiff's case, and which circumstances rebut the charge of alleged negligence for which the defendant is responsible, then it is not incumbent upon the trial court to submit the issue of unavoidable accident as a defense, in addition to a proper submission of the issues of negligence and contributory negligence as to both parties to the suit.'
"In this case the issues of negligence and contributory negligence as to both parties were submitted to the jury. The evidence clearly shows that the collision could have been foreseen. That the injuries sustained by appellees were the proximate result of the negligence of the driver of appellant's truck. That the collision occurred by reason of a cause well known, namely: The negligent failure of appellant's truck driver to stop or give the appellees half of the road, and under circumstances as charged by appellees in their pleadings.
"This case to our mind is a perfect example of an automobile collision suit wherein the theory of unavoidable accident is not involved, the same being completely dispelled by the proven facts. * * *
"An examination of all of appellant's assignments of error, which are supposed to support its proposition number six, will reflect the fact that not a single one of said assignments attempts to state wherein the evidence is deficient. All of the assignments are fatally defective under the numerous authorities cited by appellees in their brief pages 35-36. If the assignments are defective, the proposition based thereon must fall, for there can be no valid proposition without a proper assignment upon which it must rest, and the proposition cannot aid or add to the defective assignment. All of this is settled law, and is supported by any number of authorities. And we do not believe that this Court has the right or authority to exercise any discretion in the matter, but is bound to overrule the assignments and propositions attempted to be thereon founded."
The writer cannot agree that there is anything here that "completely exonerated appellant."
A careful reading of this record convinces me more than ever that there is in it nothing to call for a reversal. The case was most carefully tried, and, independent of Rule 62a, should be affirmed on its merits.
I dissent from the majority opinion, and tender my original opinion and this as my dissent.