On Motion for Rehearing
Concerning Ground IX: — The plaintiff was familiar with the procedure followed by the members of the crew in making a coupling such as that involved in this suit, and with the duties of the members of the crew who were to perform this procedure. The procedure is described in our original opinion; it consisted of the operation of the locomotive and the movement of the attached cars by the engineer at the signal of, and in accordance with the signal of the brakeman. Procedure and duties were fixed, definite and certain and evidently were established before the coupling was made, and thus were circumstances which authorized the jury to infer that the train crew followed this procedure in making the coupling which injured the plaintiff, even though no eyewitness testified as to what was actually done in making this coupling. See Greenleaf on Evidence, 16th Ed., Vbl. 1, Sec. 14 — J; Wigmore on Evidence, 3d Ed., Vol. 1, Sec. 92 et seq.; 31 C.J.S., Evidence, § 180, page 881. The plaintiff’s opinion, that the particular coupling was caused either by the brakeman’s improper signal or by the engineer’s failure to heed the signal, pointed out how the normal procedure could fail; and we have given it that significance.
. Concerning Ground XI: — In response to Issue 5 the jury have found that the engineer permitted the coupling to be made with unusual force. The verb permit *571has been given different meanings according to the'nature of the question and the circumstances before the court in the particular case. It has been held to imply knowledge or a consent of the mind, but the plaintiff charged the defendant with simple negligence, not with a wilful act or with gross negligence, and the trial court’s charge submitted only simple negligence. These circumstances are to be borne in mind in determining what meaning permitted has in Issue 5, and we construe it as meaning no more than failure to prevent, and it is improbable that the jury gave it a different construction. The finding under Issue 5 does not mean that the engineer wilfully made the collision with unusual force or that he operated his locomotive with the knowledge and disregard for consequences which are involved in gross negligence. The jury only found that the coupling had been made in a certain way; the cause for this having been done is not implied in their finding.
Concerning Ground XIII and related grounds: — We decline to hold that the fact that the coupling was made with unusual force proves as a matter of law that the engineer (or, if Issue 6 was not limited to the engineer, the defendant generally) was negligent; the question of negligence was for the jury. To go further under the evidence before us (and we put aside and exclude from this evidence the testimony about the procedure for making the coupling and the way in which it might fail which is mentioned above in connection with Ground IX) would be inconsistent with the rule of decision of the Federal Courts concerning the weight ordinarily to be given evidence making applicable the rule res ipsa loquitur.
In Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, 819, the court held that evidence making applicable the rule res ipsa loquitur did not change the burden of proof from the plaintiff to the defendant, and at page 240 of 228 U.S., at page 418 of 33 S.Ct., at page 819 of 57 L.Ed. said: “In our opinion, res ipsa loq-uitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.” This language expresses the present rule of decision. See Jesionowski v. Boston & Maine Railroad, 329 U.S. 452, 67 S.Ct. 401, 91 L. Ed. 416; Johnson v. U. S., 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468. These several decisions support the following statement of the rule of decision made in Long v. Union Pacific R. Co., 10 Cir., 192 F.2d 788, at page 789: “As applied in Federal courts to cases arising under the Federal Employers’ Liability Act, res ipsa loquitur has been lately defined to mean that the facts of the occurrence warrant, but do not compel, an inference of negligence. It is not necessary that the facts be explicable only in terms of negligence. It is sufficient if they are such as to fairly support an inference of negligence. * * * Thus, if an accident, caused by an instrumentality within the control of the defendant, would not ordinarily have occurred in the exercise of due care, the trier of the facts may, but is not required to, conclude that the accident and resulting injufy was caused by the negligence of the defendant.”
The action under review is based on Section 51 and related provision's of the Federal Employers’ Liability Act and the sufficiency of the evidence to raise a question for the jury, and thus to require a trial by the jury, is not matter of procedure but is matter of substance and a Federal question and is to be determined by the Federal rule of decision. See Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; Western & Atlantic R. Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473; Brady v. Southern R. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Texas & P. Ry. Co. v. Younger, Tex.Civ.App., 262 S.W.2d 557, at page 561. For this reason a state statute creating a presumption of negligence on proof of an *572injury by a railroad engine has been held inapplicable in an action brought in the courts of that state. New Orleans & N. E. R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Yazoo & M. V. R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817. And it has recently been held that the Federal rule as to the weight of proof making applicable the rule res ipsa loquitur which we have stated should be applied in the state court in behalf of the defendant employer. Chesnut v. Louisville & N. R. Co., 335 Ill.App. 254, 81 N.E.2d 660. We are, therefore, of the opinion that this Federal rule of decision should be applied by us in litigation under Section 51 of the Federal Employers’ Liability Act, and that the rule of decision independently announced by the courts of this state is not applicable if it differs from the Federal rule.
Plaintiff cites Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S.W. 279, 284, where a brakeman was thrown from his car by a sudden stopping of the train of cars, and emphasizes this statement by the Court of Civil Appeals: “If the stop was made as the jury found, it was negligently made.” We note that in Quanah, A. & P. Ry. Co. v. Johnson, 159 S.W. 406, which was a suit by a passenger for personal injuries caused by an improper coupling, the Court of Civil Appeals seems to have made a holding analogous to that for which the plaintiff here contends; but regardless of the merits of the holding, on which we express no opinion, the case did not involve a Federal question; and the decision cited by the plaintiff, Ft. Worth & D. C. Ry. Co. v. Stalcup, may be distinguished. The proof made there was in much greater detail than that made in the case under review, and the Federal rules of decision which we have cited above were not mentioned. Furthermore, the language which the plaintiff emphasizes was only a dictum; the question was, whether there was evidence of negligence, not whether negligence had been proved as a matter of law.
Concerning Grounds XVI and XVII: — Whether the submission of an issue not pleaded or proved is reversible error depends on the harm done by it. T. R. 434. See the following opinions of the San Antonio Court of Civil Appeals: Fisher v. Leach, 221 S.W.2d 384, at page 390; H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, at page 503, et seq.; Texas. Employers’ Ins. Ass’n v. Hudson Engineering Corp., 245 S.W.2d 523, at page 525. And see generally: 3 B Tex.Jur. 700, Sec. 1053. We remain of the opinion that the submission of the issues concerning unavoidable accident did plaintiff no harm.
Concerning Ground XVIII: — To the decisions cited in our original opinion we add this court’s opinion in Gulf States Utilities. Co. v. Grubbs, Tex.Civ.App., 44 S.W.2d 1001, at page 1002 (syl. 5,6).
The motion for rehearing is overruled.