On Motion for Rehearing.
The appellant, Gulf, Colorado & Santa Fé Railway Company, and the appellee Pullman Company have each filed a motion for re*273hearing. We have carefully examined appellant's motion, and do not find any reason to change the conclusions heretofore reached as to the issues between it and the plaintiff; therefore we overrule appellant’s motion for rehearing.
In appellee Pullman Company’s motion it is urged that the trial court was authorized to refuse the special charge requested, to the refusal of which the sixteenth assignment is leveled. A portion' of the requested instruction is as follows: •
“Now, therefore, if you believe that plaintiff was injured, but that such injury was due to and proximately caused by the failure, if any, of the Pullman Company’s porter to properly and safely place the foot box, or the failure, if any, of the Pullman Company to furnish sufficient light in the vestibule of its sleeping car from which plaintiff was alighting, or failure, if any, of said Pullman Company’s employés in charge of such car to stop or request the'stopping of defendant’s train until plaintiff could alight therefrom; and if you further believe that the omissions, if any, of said Pullman Company employés in the respects here stated were in line of their employment — you will find in favor of said Gulf, Colorado & Santa Eé Railway Company against said Pullman Company for the amount of the verdict, if any, you may return in plaintiff’s favor and against said Railway Company.”
It is urged that the uneontradicted evidence establishes the- sufficiency of the light in the vestibule of the Pullman Company’s car to enable the plaintiff, as a passenger, to alight from said car with safety; that, therefore, the trial court was authorized to decline to give to the jury an instruction submitting an issue which the evidence failed to raise. In Olds Motor Works v. Churchill, 175 S. W. 787, in discussing the sufficiency of an assignment to call the attention of the trial court to an error in the charge given, whether such error be one of mere omission or a positive misapplication of law, it is said:
“With reference to this matter, we believe the rule to be that when the court fails to charge on a material issue, and a special charge is requested, though incorrect, but sufficient to call the court’s attention to the omission, the court should submit a proper instruction on that issue; and, if proper exception is taken to such failure of the court, and a separate assignment is presented, both in the motion for new trial in the court below and in appellant’s brief, he may successfully urge the error of omission in the appellate court. But when the court has submitted a correct general presentation of the issue, if either party desires a fuller charge on that issue, he must tender to the court a correct charge, and, upon his failure to do so, he cannot avail himself of the * * * omission” — citing, authorities.
But can it be reasonably said that the charge given in the instant case, and to the giving of which the fifteenth assignment is directed, is correct as far as it goes, and that any error is merely one of omission? If defendant Railway Company was entitled to the presentation of the defense of the terms of that provision in the contract between it and the Pullman Company, such defense did not in any sense depend on the question of negligence of the Pullman Company’s employés in causing, or contributing to cause, the injury to plaintiff, but was entirely independent of the question of negligence. If the Railway Company had the right to enforce the contract of indemnity according to its terms — and no question is here raised as to such right — we are of the opinion that it was positive error to limit such right to indemnity to a showing of negligence on the part of the Pullman Company.
The court in its main charge, and following the instruction challenged in the fifteenth assignment, instructed the jury that the burden of proof was on the Railway Company, as between it and the Pullman Company, to show facts by a preponderance of evidence which entitled the Railway Company to have a judgment over against the Pullman Company, and if it had failed so to do the jury would find in favor of the Pullman Company upon that issue. This instruction placed the burden of proof on the Railway Company, before it would be entitled to a judgment over against the Pullman Company to establish negligence on the part of the Pullman Company’s employés proximately causing, or contributing to cause, the injury to plaintiff. This last instruction, taken in connection with the former instruction, makes the charge, as a whole, an affirmative error against appellant. Hence we overrule appellee Pullman Company’s motion for rehearing.