On Rehearing. The opinion of the majority of this court reversing and remanding this cause, written by Justice LANE, is so full and fair in its statement of the evidence, so clear and logical in its conclusions, and so well sustained by the authorities, many of which are cited in the opinion, that it would not be necessary to add anything further in support of the judgment of reversal but for the surprising and erroneous conclusions of fact contained in the dissenting opinion of Justice GRAVES. While the sincerity of these conclusions is not questioned, it is pertinent to remark that a talent for fluent writing and a taste and capacity for rhetorical expression are not usually conducive to accuracy or clearness in judicial *Page 916 utterances, but, on the contrary, unless vigilantly guarded and controlled, ofttimes, by presenting a multiplicity of immaterial issues, obscure the real issue and mislead the reader. The truth of this observation is clearly illustrated by the dissenting opinion. The only phase of the issue of discovered peril submitted to the jury was whether the fireman on the engine which collided with the automobile in which the deceased was riding was negligent in not sooner warning the engineer of the peril of the occupants of the automobile. The majority of the court were and are of opinion that the uncontradicted evidence shows that the fireman did warn the engineer as soon as he discovered the peril of the deceased, and that up to the time he gave this warning the deceased was not in peril, and there was nothing in the situation to reasonably indicate to the fireman that he would place himself in a perilous position. Justice GRAVES held to the opinion that the facts that the fireman saw the automobile approaching the crossing when it was 50 feet or more distant from the track, and that the speed of the car was not slackened at any time after the fireman saw it, were sufficient, regardless of the speed of the car, to give notice to the fireman that the automobile would probably go upon the track in front of the approaching train, and required him, in the exercise of ordinary care, to at once warn the engineer, and this was the point of disagreement as understood by the majority of the court. This being the only issue of discovered peril passed upon or presented to the jury, this court, in determining the question of whether the evidence was sufficient to sustain the judgment, was not authorized to consider the evidence tending to show that the engineer was negligent in failing to slacken the train or give additional warning of its approach after he had been warned of the peril of the occupants of the automobile.
The only issue of discovered peril submitted to the jury, or requested by the plaintiff to be submitted, is found in special issue No. 10, which reads as follows:
"Did the fireman upon such engine discover and realize the perilous and dangerous situation, if any, of the occupants of said automobile, in such time that he could in the exercise of ordinary care, have given warning to the engineer so that the engineer in the exercise of the same degree of care, by the use of the means at hand, consistent with the safety of himself, the engine, the train, and the persons thereon, could have stopped or slackened the speed of the train, or given warning of the approach of the train so as to have avoided killing the deceased? Answer Yes or No as you find the fact to be."
To this question the jury answered "Yes."
Under no possible construction of this charge can it be said that the issue of negligence on the part of the engineer was submitted to the jury, and the answer of the jury to this question, if it can be construed as a finding of negligence, can only be applied to the fireman. It goes without saying that the answer of the jury to the question propounded, if sustained by sufficient evidence, would not by itself support a judgment against the defendant, but, under the rule which authorizes appellate courts to assume that the trial court found additional facts necessary to support the judgment when there is evidence in the record sufficient to sustain such finding, we would probably have to assume upon the evidence in this record that the court found that the negligence of the fireman was the proximate cause of the collision, although that issue was not submitted to the jury. Recent decisions of our Supreme Court, however, have clearly modified this rule to the extent of denying to trial courts the power to find in favor of either party upon an alleged ground of recovery or defense not submitted or requested to be submitted to the jury.
In the case of Texas City Transportation Co. v. Winters (Tex.Com.App.) 222 S.W. 541, this is said:
"The power of the trial court to substitute its findings, where none have been made by the jury, does not admit of a finding by the court upon an independent ground of recovery which the party alleging it does not urge. In such case the issues submitted will be treated as embracing the only grounds upon which recovery can be had; and the failure of plaintiff to tender an issue not submitted by the court will be treated as a waiver or abandonment thereof."
This rule is reiterated and applied by the Supreme Court in the case of Ry. Co. v. Price (Tex.Com.App.) 240 S.W. 528, and again stated and applied by the same court in the cases of Boatner v. Ins. Co. (Tex.Com.App.) 241 S.W. 136, and Kistler v. Latham (Tex.Com.App.) 255 S.W. 984.
Chief Justice Fly, speaking for the Court of Civil Appeals for the Fourth District with his usual vigor and clearness, had thus stated the rule before the Supreme Court's decisions above cited were rendered. In the case of San Antonio Public Service Co. v. Tracy (Tex.Civ.App.)221 S.W. 638, he says:
"If a plaintiff can allege separate acts of negligence, acquiesce in the submission of only one of them to a jury, and then sustain the verdict on a ground of negligence upon which the jury did not pass, but which it is presumed was found by the judge, jury trial would become a farce, and the ultimate decision on facts as to other grounds of negligence would rest with the judge. Article 1985 of the Revised Statutes is not elastic enough to stretch to that extent. It simply means that, where a jury has passed on certain issues as to a certain case submitted to them if there be evidence as to other *Page 917 necessary matters connected with the issues found by the jury, it will be deemed that the court found on such matters in order to support the judgment."
A similar statement of the rule was made by the Court of Civil Appeals for the Fifth District in the case of Texas Drug Co. v. Cadwell, 237 S.W. 976.
This being the law of the case, it follows that the evidence and argument contained in the dissenting opinion upon the question of the negligence vel non of the engineer in failing to exercise proper care to avoid the injury after he was warned by the fireman of the peril of the deceased are entirely beside the question upon which the case was necessarily decided by this court. Whether the evidence raised the issue of negligence on the part of the engineer might properly be considered in determining whether judgment should be rendered by this court or the cause remanded for a new trial, but, as the majority of the court decided, though with grave doubts of the soundness of the conclusion, that the issue of contributory negligence was in the case and should not be held concluded against the appellees, as a matter of law, and remanded the cause for a new trial, it was not deemed necessary to consider or discuss the question of whether the evidence upon the issue of discovered peril raised the issue of negligence on the part of the engineer in the respect above stated. If required to pass on that question the majority would agree with the dissenting justice that the evidence does raise the issue. This in no way conflicts with our holding that the evidence does not raise the issue of discovered peril based on the negligence of the fireman as found by the jury. The evidence upon this issue is brief, and in the opinion of the majority can sustain but one conclusion, and that is that the fireman gave the warning as soon as he discovered the peril of the deceased, and that there was nothing in the acts of the occupants of the automobile, or the speed at which it was approaching the crossing, from which the fireman could have anticipated sooner than he did that the occupants of the car would probably attempt to cross the track in front of the approaching train. The fireman is dead, but we have his version of the occurrence from his statement to the engineer, which was testified to by the latter without objection. The engineer testified:
"When the fireman said `Look out!' this man was on the south side of the main line coming toward the track, and he told me afterwards that from the way he was coming — the speed — that `I knew he was going to get on the track and be struck, and I hollered at you to look out.' * * * The man was about 30 feet from the track then; that is what the fireman told me afterwards; and following that I saw the man when he come on the track and got in the position I have just described. That is what I have described to you and that is exactly the way it happened. * * * I had not seen the automobile at that time, I am positive that the first time I saw the automobile was when the rear wheels of the automobile were on the north rail."
Only two witnesses testified as to the speed at which the automobile approached the crossing, both of whom testified for the plaintiffs. As stated in the dissenting opinion, Blake Stratton, who was about one-half block north of the railroad crossing and saw the automobile approaching from the opposite side of the track, testified that it started toward the track (from Orlando's store) slowly, but that he did not keep his eye on it and did not see it again until it had been struck by the train. Davis, the driver of the automobile, testified:
"It is my best judgment that we were not exceeding four or five miles an hour from the time we left Orlando's store until we got struck. We run along at the same speed practically all of the time. * * * Before either of us looked we were within 15 feet of the track."
Davis further testified that at the rate of speed at which he was going as he approached the crossing he could have stopped the automobile within 6 or 8 feet.
The engineer testified that when he saw the automobile on the track just at the time it was struck he judged it to be going 12 or 15 miles an hour. This statement of the engineer as to his estimate of the speed of the automobile after it got on the track and its occupants realized the nearness of the oncoming train does not tend to contradict the statement of the driver of the car as to its speed before it reached the point at which the fireman gave the warning.
From this testimony, which is all there is in the record tending to show the speed and manner in which the automobile approached the crossing, it is gravely contended in the dissenting opinion that the jury were justified in finding that the fireman should reasonably have anticipated, before the car reached the point 30 feet from the track, at which time the undisputed evidence shows the warning was given, that the occupants of the car would probably drive up on the track in front of the approaching train, the view of which was unobstructed. In the mind of the writer the question does not admit of argument, and is definitely settled against the minority contention, not only by the authorities cited in the opinion of Justice LANE, but by every authority of which the writer is aware.
It is a non sequitur to argue, as the dissenting opinion does, that the fireman should be held guilty of negligence in not anticipating that the automobile would probably go upon the track because the deceased, Wagner, *Page 918 did not see the approaching train. How the dissenting justice discovered that Wagner did not see the train is not disclosed; but one thing is certain from all the evidence, that if he did not see it it was because he did not look in the direction from which it was approaching, and certainly the fireman cannot be charged with knowledge of the fact, if it be a fact, that neither the deceased nor the driver of the automobile saw the train when they were bound to have seen it if they had cast their eyes in that direction.
The minority opinion finds no support in any of the cases which it cites. This is especially true of the cases of Galveston Electric Co. v. Antonini (Tex.Civ.App.) 152 S.W. 845, and Higginbotham v. Ry. Co. (Tex.Civ.App.) 155 S.W. 1025. It was not the intention of the writer of those opinions, nor of any member of the court for whom he spoke, to in any way change or question the doctrine announced in the cases cited in Justice LANE'S opinion, which hold that discovered peril means exactly what these words imply, and that before the duty which that situation invokes arises the person charged with the duty must see and realize the peril. Peril may exist in a given situation although injury may not be inevitable therefrom, but it cannot be said to exist until injury becomes reasonably probable. This is the substance of the holding in the cases mentioned. In the Antonini Case the testimony of the motorman disclosed that when he saw the boy approaching the crossing he was standing up in his wagon driving directly towards the crossing and whipping his horse to urge him on faster, thus giving every indication of his intention to cross the track in front of the approaching car. In the Higginbotham Case the deceased was on the track, not looking toward the on-coming train, intent upon an effort to get his horses, that had gone upon the track and were either loath to get off or had become entangled thereon with a rope, out of the way of the train. In these circumstances it was held that the operatives of the train, seeing Higginbotham's position and his purpose in remaining on the track, should have realized that he would probably not get off in time to avoid injury. The quotations from the opinions in those cases set out in the minority opinion show that in each of them the situation of the injured person was such as to make it reasonably probable that injury would result unless the operatives of the train or car used proper care to prevent it. The evidence in this case presents no such situation, and the issue of liability of the appellant on the ground of discovered peril, based on the alleged negligence of the fireman, is not raised by the evidence.
While not insensible to the eloquence of those paragraphs of the dissenting opinion dealing with the sanctity of human life and the inconsequence of property rights as compared therewith, and extolling the lofty doctrines and maxims of the law which show its solicitude for the protection of the person, it is not perceived that this appeal is appropriate in the discussion of the questions involved in this case, nor entitled to any weight in the judicial determination of these questions.
Upon the question of contributory negligence the dissenting opinion is, if possible, further away from the law and the facts in the case. I am inclined to agree with the dissenting justice that the holding of the majority of the court upon this issue was erroneous, but the error in the holding was not in reversing the judgment on this issue, but in failing to hold that upon the undisputed evidence the occupants of the automobile should be held guilty of contributory negligence as a matter of law.
The record will be searched in vain for a word of testimony, other than the statements of the driver, Davis, that the reason he did not see the train coming was that "some little house or something of the kind" broke his sight, which tends to show that the train was not in the unobstructed view of the occupants of the automobile from the time they reached a point 75 feet from the railroad track. The dissenting opinion states that "this fireman from and throughout an admitted distance of 75 feet, and inferably from credible evidence more than twice that far, saw this automobile moving steadily toward the point of collision." This statement is fully sustained by all of the testimony, and it cannot be true that the fireman on the engine could see the automobile during all the time it was traveling the 75 feet and yet the occupants of the automobile could not have seen the train if they had looked in that direction. The law of physics forbids such conclusion, and annihilates any such contention. All of the maps and photographs put in evidence show that after the automobile got within 75 feet of the track the view of the train was unobstructed, and that "the little house or something" alluded to by Davis was not there. Wagner and the driver, Davis, had crossed the railroad track at this crossing, going from the north side of the railroad on their way to Orlando's store, about 20 minutes before the collision, which occurred on their way from the store back to the north side of the railroad, and the statement in the dissenting opinion that neither Wagner nor Davis "were familiar with the particular conditions then existing at the scene" is unwarranted and misleading. The evidence failed to disclose any particular condition existing at the crossing. There was nothing in the surroundings to make the crossing especially dangerous, except that it was on a frequently traveled street of the city, and railroad trains were frequently run over the crossing. The existence of the *Page 919 tracks across the street charged Davis and Wagner with notice that a train might be expected thereon at any time, and they cannot be relieved of the duty of using ordinary care to discover the approach of the train by the plea that they did not know it was a specially dangerous crossing.
The attempt made in the dissenting opinion to relieve the occupants of the car of contributory negligence because of the failure of the operatives of the train to give the warnings of the approach of the train by blowing the whistle and ringing the bell as required by the statute is another abortion. The failure to ring the bell and blow the whistle as required by the statute were alleged in the petition as grounds of negligence, but the evidence was so against the truth of these allegations that plaintiffs did not request that either of these grounds of recovery be submitted to the jury, and they were not submitted. Under the decisions cited and quoted from in the first portion of this opinion, the plaintiffs having failed to request the submission of these issues, they must be considered waived. Notwithstanding this settled rule of law and the fact that all of the positive testimony on the issues shows that the signals were given as required by the statute, the minority opinion states that the weight of the evidence is in favor of the plaintiffs on these issues.
It is useless to discuss the question further. Justice GRAVES has changed his opinion on the issue of contributory negligence presented in this case since the former appeal of the case. He says in his dissenting opinion that the evidence in this record on this issue is not the same as on the former appeal. His opinion does not set out any evidence on this issue that was not before the court on the former appeal, and I have been unable to find any evidence in this record on the issue of contributory negligence which adds a feather's weight to the evidence on that issue which was before the court on the former appeal. But, be this as it may, the learned justice not only had the right to change his opinion, but it was his bounden duty so to do, since he has reached the conclusion that his former opinion was wrong.
His reference to the state of the authorities upon the question of contributory negligence in going upon a railroad crossing without looking or listening for an approaching train is incomplete. One of the latest expressions of our Supreme Court upon the question of contributory negligence on the part of one who goes upon a railroad track without looking or listening for an approaching train is found in Ry. Co. v. Price (Tex.Com.App.) 240 S.W. 526, before cited. The opinion in that case was written by Justice McClendon, of the Commission of Appeals, and approved by the Supreme Court. The following quotation from the opinion shows that our Supreme Court has not adopted the view that there can be no contributory negligence as a matter of law in failing to look and listen before going upon a public railroad crossing. Many of the cases cited in this opinion are public crossing cases. The opinion thus states and answers the question:
"The specific question here presented is whether one who in the possession of his faculties steps immediately in front of a moving train, the approach of which is unobstructed from his view, and which could be seen and heard by him by the use of his ordinary faculties or by taking any precautions whatsoever, is guilty of contributory negligence as a matter of law when he fails to use his ordinary faculties and as a result thereof is injured. There are several cases by our Supreme Court in which this precise question has been adjudicated, in each of which the answer was in the affirmative. Railway v. Bracken, 59 Tex. 71; Railway v. Kutac,72 Tex. 647, 11 S.W. 127; Railway v. Dean, 76 Tex. 73, 13 S.W. 45; Sanches v. Railway, 88 Tex. 117, 30 S.W. 431; Railway v. Edwards,100 Tex. 22, 93 S.W. 106; Dennett v. Railway, 36 Tex. Civ. App. 459,82 S.W. 33; Railway v. Kauffman, 46 Tex. Civ. App. 72, 101 S.W. 817. Writs of error were refused in the last two cases. The basis of this rule is embraced in the following quotation from Railway v. Gaddis (Tex.Com.App.) 208 S.W. 895: `All men in possession of their faculties are charged with knowledge that a railroad track is a dangerous place, and the law will not permit them to go upon the track, even at a public highway, without being charged with a recognition of the danger attending such action and the use of such care as ordinary prudence would dictate in so doing. Where no care whatever has been exercised, our courts uniformly held that contributory negligence exists as a matter of law, and recovery is denied. What acts of prudence as constituting ordinary care are required is usually a question of fact.'" The writer, as before stated, is inclined to the view that this case comes within the rule announced in the case just cited, but in any event the verdict of the jury upon the issue of contributory negligence is so clearly wrong that the majority of this court, in the performance of what they conceived to be their duty, felt constrained to set it aside. That this power and duty, which once belonged to the Supreme Court, is now placed upon the Courts of Civil Appeals, is established by an unbroken line of authorities. It may 1e that such power should not be given an appellate court, but so long as the law remains as it now is the power carries its corresponding duty and responsibility which cannot be evaded.
The statement in the dissenting opinion, taken largely from the appellees' motion for rehearing, in regard to two errorless trials and the verdict of 24 jurors, does not appeal to the writer, as it apparently does to the dissenting justice, as a conducive or very forceful argument against the opinion of the *Page 920 majority. It is not true that the trial in the court below was errorless. As indicated in the original opinion, the trial court erred in refusing to submit special issues requested by the defendant. These requested special issues were as follows:
"Issue No. 2. Did the occupants of the automobile, or either of them, before they reached the track, and at such distance from the track that they could have stopped the automobile before reaching the track, stop, look, or listen for the approaching train?
"Issue No. 3. Did either of the occupants of the automobile look for the approaching train at such distance from the track that they could have stopped their automobile before reaching the track, and thus have prevented the accident?
"Issue No. 5. Was the noise made by the running of the train as it approached the crossing sufficient to warn a party in such close proximity to the track of the approach of the train so that he could have stopped his automobile before he reached the crossing, if he had used ordinary care to listen for the approach of the train?"
Each of these special issues presented one or more of the group of facts relied on by the defendant to establish the plea of contributory negligence.
The issue of contributory negligence was submitted by the court as follows:
"Issue No. 4 was: Did either of the occupants of the automobile fail to use ordinary care to look for the approaching train before or at the time of going upon the railroad track?"
Issue No. 6 was:
"Did either of the occupants of the automobile fail to use ordinary care to listen for the approaching train before and at the time of going upon the railroad track?"
Issue No. 8 was:
"Were either of the occupants of the automobile guilty of negligence in not stopping the automobile and in going upon the railroad track at the time and under the circumstances they did?"
These issues are in general terms, and we think the defendant had the right to have the jury pass directly upon the specific issues of fact presented by the evidence, and relied on by the defendant to establish contributory negligence. We understand this to be the rule announced by the Supreme Court in the case of Fox v. Hotel Co., 111 Tex. 461,240 S.W. 517.
The refusal of a trial court to submit issues in this way would not always require a reversal of the judgment. The harmfulness of an error of procedure depends largely upon the state of the evidence, and where the verdict is apparently against the great weight of the evidence, as it clearly is in this case, any error in giving or refusing charges should be regarded as harmful.
We have discussed the dissenting opinion rather than the motion for rehearing because the one is based upon the other. We have fully considered the motion, which is earnest and vigorous, but feel constrained, for the reasons before expressed, to adhere to our original opinion.
The motion is overruled.