On Motion for Rehearing. Appellants in their motion for rehearing in effect contend, as stated by Justice Hall in his dissent, that "the majority opinion holds that the issue (not requested or submitted) with respect to whether the crossing was an extra-hazardous one, singly and alone, is an independent ground of recovery * * * and that an affirmative answer to this issue by the jury unaided by affirmative answers to related issues would form the basis for a judgment for appellants." We do not think that the majority opinion is susceptible of the construction so placed upon it. We held that since the testimony raised a disputed issue as to whether or not it was an extrahazardous crossing, "the submission and an affirmative finding on that issue was essential to a recovery." Such holding, that a jury finding that it was an extrahazardous crossing was essential to recovery, is not, as contended, equivalent to a holding that such establishment of that fact alone would authorize a recovery. Our holding that establishment of the alleged fact that it was an extra-hazardous crossing, was essential in order to warrant *Page 101 a recovery, is based upon the decisions of our courts holding that railroad companies (in the absence of a statute or ordinance directing them to do so) are not required to provide a flagman or mechanical warning device at every crossing, but only at extra-hazardous crossings. In addition to the authorities cited in the majority opinion, see McMahan v. Texas N. O. Ry. Co., 138 Tex. 626, 161 S.W.2d 70; Texas N. O. R. Co. v. Beard, Tex. Civ. App. 91 S.W.2d 1080, writ refused; Texas N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113, 1115. In the last-cited case it is said: "Another ground relied upon was the failure of the railroad company to use extraordinary means to give warning, such as to equip its freight cars with lights and have same burning at night, to equip its crossing with signal bells or lights or to have a watchman stationed thereat. Negligence cannot be based upon such omissions, for the crossing was not extrahazardous and therefore no duty was cast upon the railroad company to observe these extraordinary precautions."
Our holding that establishment by a jury finding of the alleged fact that it was an extra-hazardous crossing, was essential to a recovery, is based upon the conclusion that the issue in question is not the character of issue that may be made the subject matter of a presumed finding by the trial judge in a case being tried before a jury, as provided for in Rule 279, Texas Rules of Civil Procedure. We arrived at such conclusion from the fact that such issue was not an element of appellants' "ground of recovery" nor was it "necessarily referable thereto," but that it was a separate and independent inquiry of a primary or basic fact, apart from the grounds of recovery and not necessarily referable thereto. The alleged ground of recovery is not the railroad company's act of maintaining the alleged extra-hazardous crossing, but in negligently failing to provide such crossing with a watchman or mechanical warning device, and that such negligence was a proximate cause of the fatal accident.
In the majority opinion we used the word "ultimate" in describing the character of the issue here in controversy, as to whether it was an extra-hazardous crossing. The word as used is thought to be inapplicable and may be misleading, and it will be stricken from the opinion.
The motion for rehearing is overruled.