It is with reluctance and some hesitation that I dissent from the ruling of the majority upon appellees' motion for rehearing, for I recognize that the cases upon which the majority base their ruling seem to support the same. But I regard the ruling as erroneous and as presenting to trial courts a great difficulty in submitting, upon special issues, cases of the present nature. For this reason I am impelled to dissent.
The preliminary portion of the court's charge was devoted to definitions and explanations.
In the order named, the court defined preponderance of the evidence, ordinary care, negligence arising out of the failure to exercise ordinary care, and statutory negligence, as copied in the main charge, proximate cause, independent intervening cause, and unavoidable accident.
Unavoidable accident was defined as follows: "By `unavoidable accident' is meant, such an unexpected catastrophe as occurs without the plaintiff or defendant being to blame for it, that is, without either one being guilty of negligence in doing, or permitting to be done, or omitting to do the particular thing that was a proximate cause of such casualty."
The court then submitted the various issues inquiring, first, whether the incident complained of between the plaintiff and the defendant transfer company was an unavoidable accident, and, second, whether such incident as between the plaintiff and the defendant grocery company was an unavoidable accident. Both of these questions were answered in the negative.
In cases submitted upon special issues it is the duty of the court, imposed by statute (article 2189) to "submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues." We have here a case presenting issues of *Page 606 negligence arising out of a failure to exercise ordinary care, statutory negligence, and unavoidable accident. In order for the jury to pass upon the issue of unavoidable accident, it was necessary to define both kinds of negligence, and, in the case of statutory negligence, it was necessary to do more than merely define the term. It was necessary, by way of explanation, to also inform the jury as to the statutory provisions relative to driving in excess of twenty miles per hour and yielding the right of way at intersections.
That is all the court did in the definition and explanation of statutory negligence, and in my opinion it should not be regarded as subject to the objection of being a general charge.
The definition and explanation given of statutory negligence was, in my opinion, absolutely necessary to enable the jury to properly pass upon and render its finding upon the issue of unavoidable accident.
The majority opinion recognizes this, but intimates the definition and explanation should have been expressly limited to the issue of unavoidable accident. If it had been so done, that would not have relieved the same of being a general charge if it be justly subject to the criticism that it was such a charge. It would have still been a general charge.
The majority also say it was to be considered by the jury in connection with all of the other issues in the case. The same criticism can be made of every definition and explanation given in the charge.
The court prefaced that portion of the charge relating to definitions and explanations with this statement: "In connection with the issues submitted certain legal terms will be used, hence, for your guidance the Court will define same."
The definition and explanation in question was pertinent only to the issue of unavoidable accident, for, in submitting the issues of proximate cause in connection with the issues of speed in excess of twenty miles per hour and failing to yield the right of way, the court assumed negligence as a matter of law, if affirmative answers were returned upon such issues of speed and failing to yield the right of way.
It is not to be assumed the jury gave to the definition and explanation of statutory negligence any pertinency other than that which properly attached to it, namely, in connection with the issue of accident. If the jury did give it an improper application, that would not render it a general charge.
In brief, the writer is of the opinion that the definition and explanation in question was a proper and necessary one and not subject to the criticism that it was a general charge.