Upon a further consideration, the writer has reached the conclusion that appellant's assignment of error, to the refusal of the trial court to submit the issue as to whether or not the defendant Bonner's negligence in failing to keep a proper lookout for street cars on the occasion of the accident in controversy was the sole proximate cause of the collision in question, should be sustained. The court did submit the issue as to whether or not Bonner was guilty of negligence in that respect and whether such negligence was a proximate cause of the accident, to both of which issues the jury returned answers in the affirmative. The appellant specially pleaded that such negligence on the part of Bonner was the sole proximate cause of the collision and the injury resulting to plaintiff therefrom.
It is a well settled rule of decisions of this state that a defendant has the right to an affirmative presentation to the jury of any fact or specified group of facts relied on in his pleadings as a defense, which, if true, would establish such defense. The leading decision is M., K. T. Ry. Co. v. McGlamory. 89 Tex. 635, 35 S.W. 1058. The rule announced in that decision has been uniformly followed in many other decisions, both by the Supreme Court and Courts of Civil Appeals, such as Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Id. (Tex.Civ.App.)196 S.W. 648; St. L. S.W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S.W. 1039; Fort W. D. C. Ry. Co. v. Taylor (Tex.Civ.App.) 153 S.W. 355; Jones v. M., K. T. Ry. Co. (Tex.Civ.App.) 157 S.W. 213; G., C. S. F. Ry. Co. v. Loyd (Tex.Civ.App.) 175 S.W. 721; Texas Electric Ry. Co. v. Sikes (Tex.Civ.App.) 251 S.W. 589; Gammage v. Gamer Co., 213 S.W. 930, by Commission of Appeals, whose conclusions were adopted by the Supreme Court; Armour Co. v. Morgan, 108 Tex. 417, 194 S.W. 942, and many other cases which might be cited.
In the case of Gammage v. Gamer Co., 213 S.W. 930, noted above, plaintiff was allowed a recovery upon a finding of negligence on the part of defendant in a single respect, and the judgment was reversed by our Supreme Court for the sole reason that the court refused defendant's requested instruction presenting the negative of that issue. The two decisions noted above, Texas Electric Ry. Co. v. Sikes, 251 S.W. 589, by the Austin Court of Civil Appeals, and G., C. S. F. Ry. Co. v. Loyd,175 S.W. 721, by this court, specifically support the assignment referred to above.
In the opinion of the majority on this motion for rehearing, some probable doubt is implied as to the soundness of the opinions in the two cases last cited, by reason of the fact that neither of them was ever passed on by the Supreme Court; no writs of error having been prosecuted to that court. The writer is of the opinion that both of those decisions were correct, since they were in full accord with and sustained by the decisions in the McGlamory Case and other decisions following it. Furthermore, our Supreme Court in Armour Co. v. Morgan, 108 Tex. 417,194 S.W. 942, decided the same question decided in those two cases, and in the same manner, as shown in the following quotation from the syllabus:
"Where a servant is injured by negligence of the master recovery may be had though negligence of a fellow servant combined with it to cause the injury; but not where the fellow servant's negligence was the sole cause. The pleading and evidence raising the issue as to whether the injury was caused solely by the negligence of a fellow servant, a requested instruction denying recovery in that event was improperly refused, though the charge given authorized recovery only on finding of negligence by the master."
And that decision was cited with approval in Gammage v. Gamer Co., 213 S.W. 930, by the Commission of Appeals, which is noted above.
In Campbell v. Johnson, 290 S.W. 526, by the Commission of Appeals, such decisions as M., K. T. Ry. Co. v. McGlamory, 89 Tex. 635,35 S.W. 1058, Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, and G., C. S. F. Ry. Co. v. Gorman, 112 Tex. 147, *Page 883 245 S.W. 418, are cited with approval, with the further holding that the rule therein announced, requiring an affirmative submission of a defense, is applicable to the submission of the issue of proximate cause, to the same extent as it is to the issue of negligence.
The writer is of opinion further that the fact that the jury also found appellant guilty of negligence after the plaintiffs peril was discovered, which was a proximate cause of the injury, furnishes no sufficient reason for holding that the refusal of the requested instruction now under consideration was, at all events, harmless error; since a finding, which the jury might have made under the evidence, that the negligence of the defendant Bonner was the sole proximate cause of plaintiff's injury, necessarily would have precluded a finding that the alleged negligence after discovered peril was also a proximate cause of the injury. It occurs to the writer that the reason advanced by the majority would lead logically to a denial of the rule altogether that was announced in the McGlamory Case and uniformly followed by all our appellate courts in later decisions.
Accordingly, it is the opinion of the writer that appellant's motion for rehearing should be granted, the assignment of error to the refusal of the trial court to submit to the jury the requested issue noted above should be sustained; that our former judgment affirming the judgment of the trial court should be set aside and the cause remanded.