I concur with the opinion of Justice Stephenson and for the following additional reasons.
The antecedent of Rule 279 was Article 2190 as amended by Acts 42nd Leg. 1931, ch. 78, § 1, p. 120. It read:
'When the Court submits a case upon special issues, he shall submit all the issues made by the pleading and evidence. Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or Writ of Error, an issue not submitted and not requested is deemed as found by the Court in such manner as to support the judgment if there is evidence to sustain such finding.'
Following the passage of this Act, the Supreme Court in 1940 '(i)n view of the confusion that has resulted from the construction of Art. 2190, this court has decided to reexamine the question and reannounce rules relating to the submission of special issues.' Thus emerged the important and oft cited case of Wichita Falls Oklahoma Ry. Co. v. Pepper, 134 Tex. 360,135 S.W.2d 79, 80 (1940), which remains today the authority in these matters.
There plaintiff Pepper sued the Wichita Falls Oklahoma Railway Company and the Wichita Valley Railway Company for damages to his growing crops based upon the negligence of the defendants by causing flood waters to cover the land.
Judgment was entered for the plaintiff following jury answers to special issues. An issue was submitted inquiring what would have been the number of bushels of corn plaintiff would have raised had it not been damaged by the acts of the defendants; but no issue was submitted as to what amount of cotton was actually raised by plaintiff on the land damaged.
The court held that in the absence of objections, the trial court could make this finding:
'Where the court submits issues covering two or more grounds of recovery or defense, and the jury finds essential facts on one ground sufficient to base a judgment thereon, the court has the power to enter judgment in the cause, although it may appear that another or other grounds of recovery or defense have been submitted in part, or incompletely submitted, with the acquiescence of the parties, covering separate and independent grounds of recovery or defense; and the jury having made answer thereto, the court may find on such issue, or issues, not submitted, and not requested, in such manner as to support the judgment, if there is evidence to sustain such finding.' Wichita Falls Oklahoma Ry. Co. v. Pepper, supra, p. 85.
To conform with this decision, Rule 279 added the following:
*Page 585'(B)ut where such ground of recovery or of defense consists of more than one issue, if one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable
thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without such request, or objection, and there is evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted issue or issues in support of the judgment, but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.'
Thus, explained Judge Alexander (see comment quoted in 3 Vernon's Ann. Rules Civ.Proc., p. 8):
"If, however, the grounds of recovery or of defense consist of more than one element — that is, require more than one issue to submit them — and the court submits some of the elements but omits others, and there is no objection to the failure to submit same, the parties will be placed in the position of having agreed to waive a jury trial on the unsubmitted elements and to have submitted them to the court for his determination."
I do not see Christy v. Blades, 448 S.W.2d 107, 110 (Tex.Sup. 1969), holding it plaintiff's burden to request and obtain 'excuse' under Article 6701d, § 86 as controlling here for we do not have a failure to submit 'excuse'; only at best an incomplete submission. It is this situation, in my judgment, the above quoted portion of Rule 279 is designed to cover.
To me, the record reveals that here the trial court and all attorneys thought the 'excuse' just referred to was being adequately submitted. Appellant objected to issues 14 and 15 (the excuse issues):
*Page 5861. "Defendants object and except to special issue No. 14 and 15 for the reason that the evidence is legally and factually insufficient to submit to the jury the doctrine of impossibility of compliance Or excuse under the Texas law for the reasons that under the plaintiff's theory of speed of the motor vehicle the plaintiff's doctrine of excuse cannot be given legal effect because the motorist, Arthur Garza Castro, was under a duty to regulate the speed of his automobile pursuant to revised civil statute 6701d, section 166c, so as to drive at an appropriate reduced speed when approaching and crossing a railroad grade crossing." (emphasis ours)
2. "Defendants object and except to the submission to the jury of special issues Nos. 14 and 15 for the further reason that a motorist is under a duty to regulate the speed of his automobile and to keep it under such control when he approaches a railroad grade crossing So as to be able to comply with revised civil statute 6701d, section 86, sub-section C. and D. at any time that the situation described by those statutes arises.' (emphasis ours)
3. 'Defendants object and except to the submission to the jury of issues 14 and 15 on the ground that the inability of the motorist, Arthur Garza Castro, as alleged by the plaintiffs to stop because of speed or briefness of time was caused by the negligence of Arthur Garza Castro and is Therefore no legal excuse as a matter of law for his failure to stop his motor vehicle as required by revised civil statute 6701d, section 86, sub-section C. and D.' (emphasis ours)
4. 'Defendants object and except to the submission of issues No. 14 and 15 to the jury because the evidence conclusively shows that as Arthur Garza Castro approached the intersection of Trail Street and the tracks of the Southern Pacific Railroad advance warning signs were clearly visible to him as well as the statutory warning signs at the crossing, and the evidence shows that the driver of the motor vehicle was clearly warned of his impending approach to a railway grade crossing And therefore the doctrine of excuse advanced by the plaintiffs is clearly inapplicable because the driver was
given a warning of the necessity of reducing his speed of his motor vehicle because of the railroad grade crossing he was approaching and therefore his failure to decrease the speed of his motor vehicle as required by Texas law constituted negligence as a matter of law on the part of the driver of the motor vehicle.' (emphasis ours)
And, even more clearly, appellant objects to the submission of issues 14 and 15 as being duplicitious:
'Defendants object and except to the submission to the jury of special issues Nos. 14 and 15, for the reason that such issues are deplicitious and constitute a shade and phase of the issues as submitted by the defendants regarding the doctrine of statutory violation of Revised Civil Statute 6701d, Section 86c and d.'
And so we have a case here not of silence in the trial court, but of objections contrary to the position now taken in this court.
Objections are to aid the court in preparing a correct charge and preventing error. While it was once permitted to mislead the trial court and then appeal if the verdict was unfavorable, it is no longer. See 3 McDonald Texas Civil Practice (1970 Rev.). Certainly I do not believe there was any intentional misleading here, but the result is the same.
To me, the phrase 'immediate hazard' as used in Article 6701d, § 86(c) and 'hazardous proximity' as used in § 86(d) of the same article mean the same thing. Nothing is more difficult to submit under Texas law than a railroad crossing collision. Until the statutes are clarified and simplified by the legislature, we will continue to have perplexing problems such as presented by this case.