dissenting.
Being of opinion that the judgment of the trial court in favor of the parents of Eston Childre should be affirmed by this Court the minority (meaning herein the writer of this dissenting opinion) respectfully dissents from the action of the majority in reversing and remanding the cause to the district court for another trial. The trial court submitted (on ample evidence before the jury) special issues in response to which the jury found that Casstevens was driving on his left-hand side of the highway when the collision (admitted by him) between his car and Eston,occurred; and found also that his so driving was negligence proximately resulting in Eston's death.
With the testimony of the Texas Ranger and local officials investigating the matter less than an hour after the collision, showing on the trial that the boy’s hair embedded in the crushed glass of the left door of Casstevens’ car, its maroon colored paint on his clothing, and numerous other circumstances, all tending to .show the car was on the left side of the highway when the tragedy occurred, and that it was proper for the trial judge to submit the issues on which the findings were all made against Castevens, he did not testify, nor proffer any reason for failure to .do so or offer evidence of any character. He merely filed a motion in the trial court for an instructed verdict which, in the unanimous view of this Court, was properly denied.
It is contended here by Casstevens, and the Court of Civil Appeals held (and such, the minority thinks, is the effect of the majority action) that before a finding could properly be made that he was driving his car on his left side of the road *301when the collision occurred, it would be necessary for Eston’s parents, in order to procure a judgment against Casstevens, to show it was not possible for the body to have been thrown from his right-hand side of the road to where it lay, by the blow received.
This is not a correct view of the law. Burlington Rock Island R. Co. v. Ellison et al., 140 Texas 353, 167 S. W. (2d) 723; Bock v. Fellman (Com. App.), 212 S. W. 635; Gulf C. & S. F. Ry. Co. v. Dunman (Com. App.), 27 S. W. (2d) 116, 72 A. L. R. 90. In the case first cited the Court states the established law as follows, citing the Bock case:
“These plaintiffs were not required to exclude the probability that the accident might have occurred in some other way. To so hold would impose upon them the burden of establishing their ease beyond a reasonable doubt. They were only required to convince the jury by a fair preponderance of the evidence that the accident resulted from the negligence of the defendant.” (Emphasis ours. (140 Tex. 353, 167 S. W. (2d) 726.)
(Casstevens, when the collision occurred, was driving south and the boy was walking north, and a few minutes later his broken body was found lying at least twenty feet to the left of the center line of the road on its east gravel shoulder; and there is no evidence that Casstevens was then on his right side of the road, or at any place thereon other than where he would have to be in order to collide with the boy who, according to the evidence, was seen nowhere on the right of way, dead or alive, other than on the east gravel shoulder near where the occupants of the car felt the blow of the admitted collision, and near where the body lay. The assumption is indulged in making this statement that if there were such evidence the majority opinion would show it.)
Since Casstevens was in possession of the facts, if there were any, to explain his driving on his left side consistent with ordinary care, it was correct for the jury to find, as it did, that inasmuch as he proffered no explanatory fact or counteracting testimony, the evidence so withheld, if he had given it, would have confirmed the facts as found, to the effect that he was negligent in driving on his left side of the road, and that this was a proximate cause of Eston’s death, (the causal connection on proximate cause being the admission that Eston was killed by the collision). Bailey v. Hicks, 16 Texas 222; Texas Company v. Charles Clark & Co., Tex. Civ. App. 182 S. W. 351, wr. dism.; *302Atex Const. Co. v. Farrow, Texas Civ. App., 715 S. W. 2d 323, wr. ref.; American Gen. Ins. Co. v. Nance, Tex. Civ. App., 60 S. W. (2d) 280 (wr. ref.); Jeter v. State, Tex. Civ. App., 171 S. W. (2d) 192 (error ref. W. O. M.).
The action of the majority in remanding the cause to the district court for another trial is contrary to law and the established practice of this Court. Hall Music Co. v. Robinson, 117 Texas 261, 1 S. W. 857; Faulk et ux v. Futch et ux., 147 Texas 253, 214 S. W. (2d) 614, loc. cit. p. 617 (4) 5 A. L. R. (2) 963 and cases there cited. Liedecker et al v. Grossman et al., 146 Texas 308, 206 S. W. (2d) 232, loc. cit. p. 235 (5, 6) and cases there cited.
The majority apparently disregard as no longer valid the guidance laid down in the foregoing cases since, in silent disregard of such guidance, they merely point, without comment, to the recent cases of Woods v. Townsend, 144 Texas 594, 192 S. W. (2d) 884 and Dean v. Birdville Ind. School Dist., 138 Texas 339, 159 S. W. (2d) 111, respectively, as precedents for disposition of the present case. Both of these cases in the opinion of the minority were correctly decided under the facts of each respectively; but neither is a precedent for the action taken in remanding the present case for another trial when the errorless judgment of the trial court should be affirmed.
In the Woods case the cause was remanded by this Court to the Court of Civil Appeals because that Court had been improperly prevented from considering testimony in passing on the factual insufficiency of the evidence. Obviously this was correct. In the Dean case the trial court judgment was reversed and the cause remanded by the Court of Civil Appeals, which meant that its action was taken on the basis of insufficient evidence factually. This Court, in holding that it was without jurisdiction to revise the judgment of the Court of Civil Appeals, ther'e being evidence on which the trial court judgment was predicated, simply affirmed the judgment of the Court of Civil Appeals and cited the Hall Music Company and Ablon cases as authority for doing so. This also was obviously correct.
Summarizing and pointing out additional authority, strictly procedual, which leads to the same result as the authorities cited above in treating the case. more on its merits than in a strictly procedural fashion, it is the minority opinion, expressed tersely, that the judgment entered by the trial court was error-less under the record before us, and the case cited, and should be affirmed by this Court, the Court of Civil Appeals having *303rendered judgment in favor of defendant Casstevens. Simmons et al v. Dickson, on rehearing, 110 Texas 230, 234-5, 213 S. W. 612, 218 S. W. 365; Texas Emp. Ins. Asso. v. Kennedy (Com. App.), 135 Texas 486, 143 S. W. (2d) 583. As stated by this Court on rehearing in the case first cited, referring to the trial court’s judgment: (110 Tex. 230, 218 S. W. 366) :
“That judgment being correct, it is entitled here to be affirmed. We would not be warranted in reversing a correct judgment to enable the losing party here to adduce proof which he should have offered in the first instance.” (Emphasis ours.)
On the grounds above stated the minority respectfully dissents.
Opinion delivered November 23, 1949.