I am unable to concur in the majority opinion filed herein ordering an affirmance of the judgment of the trial court. I am in agreement with the statement of the case and the clear and convincing reasoning of the Chief Justice in all particulars except in respect to appellants' points 5 and 6 having to do with the failure of the trial court to submit to the jury appellants' requested issues 4, 5, 6, 7, 8, and 9. In my opinion, these issues should have been submitted to the jury, and for the trial court's failure to do so the judgment should be reversed and the cause remanded.
These issues are in proper form and, deleted for brevity, are: (4) Did the railway company fail to maintain a mechanical device at the crossing? (5) Was such failure negligence? (6) Was such negligence the proximate cause of deceased's death? (7) Did the railway company fail to maintain a watchman at the crossing? (8) Was such failure negligence? (9) Was such negligence the proximate cause of the death of deceased? The effect of the holding in the majority opinion, concisely stated, is: (1) Affirmative answers to above special issues would not form sufficient basis for judgment for appellants upon the ground of negligence in failing to maintain a flagman or mechanical signal at the crossing; (2) having requested the submission of all the several related issues comprising this particular ground of recovery except one, appellants thereby completely waived such ground, which we all agree was amply raised by the pleadings and evidence. As I interpret them, the decisions cited and relied on in the majority opinion do not sustain such conclusions. Tisdale v. Panhandle S. F. Ry., Tex.Com.App., opinion adopted, 228 S.W. 133, 134, 16 A.L.R. 1264, is one of the cases cited by the majority. In that case our Supreme Court approved the judgment of the trial court based upon a finding by the jury that the railway company was negligent in failing to maintain a flagman at the crossing without the additional jury finding that the crossing was extra hazardous. *Page 99 The following quotations from the Tisdale case, in my opinion, are controlling here:
"The sole question for determination in this connection by this court is whether or not the trial court erred in submitting the aforesaid issue to the jury. There was no objection to the form of the charge used by the trial court in doing so. It was in the usual form, the court asking thejury to determine whether or not an ordinarily prudent person, under thesame or similar circumstances, would have provided a flagman at saidcrossing. * * *
"It is elementary, of course, that where all reasonable minds would draw the same conclusion from a given state of facts, the effect of such a state of facts would become a question of law for the court, rather than a question of fact for the jury. The authorities cited in Michie's Digest of Texas Civil Cases, vol. 14, p. 688, fully sustain this fundamental proposition, Therefore, if the facts in this case might leadto different conclusions in reasonable minds as to whether or not thecrossing in question was attended with unusual danger or extraordinaryhazard, then it became the duty of the trial court to submit to the jurythe issue of negligence in the failure to have a watchman at saidcrossing.
"We think the facts were such that reasonable minds might easily draw different conclusions therefrom, and were amply sufficient to warrant the submission of this charge to the jury. The issue was clearly raised by the evidence. * * *
"The crossing was a much-traveled one, and it was difficult to hear the ordinary signals, by reason of the confusion incident to the operation of trains. Under the authority of the case of [Grand Trunk] Railway Co. v. Ives, 144 U.S. 408, 12 S. Ct. 679, 36 L. Ed. 485, this combination of facts was certainly sufficient to justify the trial court in submitting the issue in question to the jury. * * *
"In view of what has heretofore been said, we conclude that the trialcourt, under the evidence in this case, properly submitted to the jurythe issue as to whether or not defendant in error was guilty ofnegligence in failing to have a watchman at the crossing when and whereTisdale was killed, and that the Court of Civil Appeals was in error insustaining the assignments of error attacking said action of the trialcourt." (Italics mine.)
Under the above holding, the evidence in this record such as the physical condition of the crossing, the unusual number of trucks passing over it during each 24 hours, the number of trains passing over the crossing each day, and the speed with which they were operated, relates solely and directly to the alleged negligence of the railway company in failing to maintain a flagman or mechanical device at said crossing, and is amply sufficient to raise the issues requested.
But this dissent is founded upon stronger grounds, if need be, than the clear precedent set by the Tisdale case. The issues requested by appellants, collectively, submitted the distinct ground of recovery based upon the alleged negligence of the railway company in failing to maintain a flagman or mechanical warning device at said crossing. In the recent case of Wichita Falls Okla. Ry. v. Pepper, 134 Tex. 360,135 S.W.2d 79, 80, our Supreme Court has, in a comprehensive opinion, set forth the matter and manner of submitting special issues in order to settle "the confusion that has resulted from the construction of Art. 2190." Concluding said opinion and as illustrative of the holding therein, it is said: "A fair and commendable practice would be for the trial court to submit substantially the essential component elements of an issue. As an illustration, we will take a negligence case. As ageneral rule, in such a case the four component elements of the ultimateissue must be shown: (1) that the defendant did an act, (2) that the actwas an act of negligence, (3) that the act of negligence was theproximate cause of title plaintiff's damage, and (4) that the plaintiffwas damaged. But if the trial court should fail to submit one or more ofsuch component elements of an ultimate issue, such component element, orelements, not submitted and not requested to be submitted, are notwaived, and the court may find the unsubmitted element, or elements, insuch way as to support the judgment rendered by him, if there is evidenceto support such finding." (Italics mine.)
The opinion in the Pepper case, supra, expressly approved a judgment of the trial court under authority of R.S. Article 2190 entered upon a jury verdict where part of the issues relating to a distinct ground of recovery, raised by the evidence, were omitted, there being no objection to the *Page 100 omission and no request for submission. By high authority it is said that the case last cited, together with Ormsby v. Ratcliffe, 117 Tex. 242,1 S.W.2d 1084, and North v. Atlas Brick Co., Tex.Com.App., 13 S.W.2d 59, form the basis of Rule 279, Texas Rules of Civil Procedure (Franki p. 296).
Paragraph 2 of Rule 279 is: "Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; but where such ground of recovery or of defense consists of more than one issue, if one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without such request, or objection, and there is evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted issue or issues in support of the judgment, but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment."
As said before, 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 appellants waived said ground by failing to request its submission. Such conclusion can mean nothing more or less than 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. Just what judgment could the trial court have rendered for the appellants upon the jury's answer that the crossing was an extrahazardous one? Appellants could derive no benefit from such a judgment except the judicial information imparted by the jury's affirmative finding. Such a holding by the majority, in my humble opinion, is in the very teeth of both the Pepper case and Rule 279, Texas Rules of Civil Procedure.
But conceding for the sake of argument, that the omitted issue with respect to the hazardous condition of the crossing was a proper one to be submitted to the jury together with those issues requested by appellants, still its omission under the record here would not work a reversal based upon answers to the requested issues had they been submitted, for the reason that under the holding of the Pepper case, supra, and Rule 279, "the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted issue or issues in support of the judgment, but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment." In a negligence case no single issue in a group of issues submitting a distinct ground of recovery outranks the others, but they are all of equal dignity, and a failure to request the submission of one does not waive the ground of recovery. In my opinion, the trial court committed error in refusing to submit to the jury the issues requested by appellants, and for this reason the judgment should be reversed and the cause remanded for another trial. So believing, I earnestly register this, my dissent.