Appellant excepted to that portion of plaintiff's petition which alleged that the general condition of said track was unsafe and dangerous, which exception was by the court sustained, and appellee thereupon filed a trial amendment, omitting such general allegation. Appellant specially denied that its roadbed was not properly or adequately ballasted, that the rails were loose or insecurely fastened to the ties, or that the ties were old and worn, or that at the time of the wreck it was operating its train at a rate of speed which was dangerous, taking into consideration the condition of the track, and specially alleged to the contrary; and further:
"That it does not know the cause of the wreck, unless it be that the same was caused by reason of unprecedented rainfall and overflow, at and around and about said point on its track and throughout a large area of territory throughout Central Texas, especially that portion of Texas through which the Brazos river runs and is traversed by this defendant's line of road, and that such wet and overflowed condition was caused and occasioned by the act of God; that the entire country for many miles around and about the point where this accident occurred had, for a number of days, been flooded by unusual and unprecedented rainfalls, and this defendant believes that said unprecedented rainfalls and the act of God were the direct and proximate cause of the injury complained of by this plaintiff, and for which it is in no sense liable."
Appellee by supplemental petition denied the alleged facts constituting the act of God. Appellant also pleaded that appellee was guilty of contributory negligence in riding in the car containing the shipment in question, instead of riding in the caboose of such train, in that he chose the more dangerous of the two places in which to ride, which allegation was specially denied by appellee.
The evidence shows that appellee was a caretaker, riding in a car containing household goods and animals belonging to his father; that he was properly in said car, and was not guilty of contributory negligence by riding therein; that the car in which he was riding, and other cars in said train, turned over; that the wreck was not occasioned by the act of God as alleged by appellant; that by reason of said accident he suffered serious and permanent injuries; that at the time of the wreck the train was being operated at the rate of about 40 miles an hour.
The trial before a jury resulted in a verdict and judgment in favor of appellee for the sum of $2,000. No error is assigned as to the amount of said judgment.
Appellant's second assignment of error is as follows:
"The court erred in refusing to give special charge No. 4 requested by the defendant, which is as follows: `You are instructed that the burden of proof is on the plaintiff to show by a preponderance of the evidence that the wreck in question was caused by one or more of the acts of negligence complained of by plaintiff in his *Page 139 petition, and, unless he has done so, you will return a verdict for the defendant. And even though you may believe from the evidence that the defendant was guilty of negligence in some other respect than that alleged by the plaintiff, and that such negligence caused the injuries complained of, you should find for the defendant.' "
The court in its principal charge set out fully the allegations in the pleadings of both plaintiff and defendant, and instructed the jury as follows:
"You are instructed that if you believe from the evidence that defendant's roadbed was not properly or adequately ballasted, so as to make the same secure or firm as a foundation for its line of track, or that the rails thereof were loosely or insecurely fastened to the ties, or that the ties were old and worn, or if you should believe from the evidence that defendant's train at the time of the wreck in question was being propelled at a rate of speed which, by reason of the condition of the track, was dangerous, and that by reason of any or all of said conditions, if any, defendant's train was caused to wreck, and you believe that defendant in any or all of these respects had failed to use the highest degree of care in the manner as hereinbefore charged you, you are instructed that defendant would be guilty of negligence; and, if you so believe from the evidence that the plaintiff was injured as a direct and proximate result thereof, you are then instructed to find for the plaintiff."
The court further instructed the jury that the burden was on the plaintiff to establish by preponderance of the evidence whether or not he has suffered injury and damage, as alleged by him, as the proximate result of such wreck, and that the burden was on the defendant to establish, by a preponderance of the evidence, the fact that said wreck was not caused by its failure to exercise the highest degree of care in any of the ways as alleged by the plaintiff as the proximate cause of his injuries, if any.
The charge of the court in placing the burden on the defendant to establish by a preponderance of the evidence its lack of negligence was erroneous, and the special charge requested is the law of the case and should have been given. The Court of Civil Appeals for the Second District, in Railway Co. v. Barnes, 168 S.W. 992, and in Elser v. Putman,171 S.W. 1052, held that under the act of 1913 (Gen. Laws, p. 113) the failure to give a special charge, though correct, would not be considered where it contradicted the general charge to which no exception was taken. We quote from the opinion in Railway Co. v. Barnes, supra, as follows:
"`Article 2061. The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing article.' * * * If, as provided by the amended statutes, a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them. And according to a well-established rule of decisions in force before the enactment of that statute, if a party requests two different instructions upon the same issue and one of them is given, be cannot complain of the refusal of the other."
The statute requiring objections to the charge given by the court to be shown by a bill of exceptions in order to bring them to this court for review is mandatory, as this and other Courts of Civil Appeals have frequently held; and the language that "the ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved, unless excepted to," is plain and unambiguous, and we concur in the ruling of the Court of Civil Appeals of the Second District in its construction of this statute as above set out, for which reason we overrule appellant's second assignment of error.
Should we have considered said second assignment, we would not have held that the error complained of was reversible error under rule 62a for the government of the Courts of Civil Appeals. The finding of the jury in appellee's favor under the charge of the court necessarily included the finding as a fact that appellant's roadbed was defective in the manner alleged by appellee. The evidence sustains this finding, and we do not believe that their verdict would probably have been different had the court charged that the burden of proof as to such conditions was on appellee. Therefore, believing that the error complained of was not calculated to cause, and probably did not cause, the rendition of an improper judgment in the case, we would have been constrained to overrule appellant's second assignment of error, had we felt at liberty to consider the same.
Appellant's third assignment relates to the refusal of the court to peremptorily instruct the jury to return a verdict for the defendant. For the reasons above stated, this charge was properly refused. In this connection we will state that there was no testimony raising the issue of contributory negligence on the part of appellee; for which reason we overrule appellant's tenth assignment of error.
There was no error in refusing appellant's special charge No. 5 for the reason that the matters therein set out were sufficiently submitted in the principal charge of the court, and by special charge No. ______ given at the request of appellant, for which reason we overrule the eleventh assignment of error.
The twelfth assignment of error complains of the failure of the court to give the following special charge:
"You are instructed that, should you believe from the evidence that John Bartek had a defective hand and arm before the alleged wreck, then in that event defendant would not be liable to plaintiff for damages for the defects in said hand as it was prior to said wreck."
The thirteenth assignment relates to the same matter. The evidence showed that appellee had a slight defect in his left hand from infancy, but that the same did not materially interfere with his capacity to labor. Plaintiff did not claim any damages by reason of any permanent injury to said hand or arm; *Page 140 and while it might have been proper, out o abundance of caution, to give the requested charges, we do not think, under the evidence in the case, that the failure to do so was reversible error.
The special charges requested by appel lant, as shown by its fourteenth and fifteenth assignments of error, were substantially given in the main charge and in the special charge given at the request of appellant, for which reason we overrule said assignments. As an additional reason for overruling the twelfth and thirteenth assignments, we call attention to the fact that appellant did not allege that the verdict was excessive.
The writer here takes occasion to state as his personal opinion that although a plaintiff who has alleged specific acts of negligence ought not to be allowed to recover where the evidence shows that the cause of the injury was some other act, though the same be negligence on the part of the railway company, still the doctrine of res ipsa loquitur should apply where a passenger is injured in a wreck, in so far as concerns the special acts of negligence alleged. The general rule which requires a plaintiff to specifically allege his cause of action is based upon the theory that a defendant ought to be notified of what he is required to meet. This rule, under all of the decisions, does not apply in case of injury to a passenger where he alleges acts of negligence generally, for the reason that the wreck speaks for itself, and shows that it would probably not have happened but for some act of negligence on the part of the railway company; and, in such case, the railway company must assume the burden of proof and come prepared to prove that it was not guilty of any act of negligence which caused the wreck. Such being the law, it occurs to the writer that, when specific acts of negligence are alleged, a railway company ought to come prepared to prove that such negligence did not exist. The reason for the rule which shifts the burden upon the railway company to show lack of negligence, where the allegation is one of general negligence, is that it is presumed to have peculiar knowledge as to the condition of its roadbed and cars, and the manner in which the same are operated. I think the same presumption should exist as to the matters specifically alleged, and that, to this extent, proof of the wreck should be presumptive evidence of negligence in the manner alleged. The writer, however, in this matter, speaks only for himself and not for this court.
The appellee objects to our considering any of appellant's assignments of error with reference to the refusal of the court to give the special charges requested, for the reason that each of the bills of exception thereto is approved in the following manner:
"Approved with the qualification that I have no recollection whatever as to whether or not the defendant excepted to such action of the court."
The purpose of the qualification to a bill of exception by a trial judge is to show that some one or more fact alleged in such bill is not true, or to show some other fact in justification of the ruling of the court. This alleged qualification does neither, and is not, in any proper sense, a qualification of the bills of exception. By approving the bill, the trial judge, in effect, states that the facts therein alleged are true. Whether he came to such conclusion from his independent memory or from notes made by him at the time, or in some other undisclosed manner, is no affair of the appellate court.
Finding no error of record, the judgment of the trial court is affirmed.
Affirmed.