ON MOTION FOR REHEARING
In his motion for rehearing appellee 'vigorously assails the holding in our original opinion that the jury’s answers to Special Issues Nos. .2 and 9 are in irreconcilable conflict, necessitating a reversal of the court’s judgment.
Special Issue No. 2, the jury’s 'answer thereto and the instructions to the jury accompanying the submission of the' special issue were as follows:
“Do you find from a preponderance, of the evidence that on the occasion in question defendant failed to furnish plaintiff a reasonably safe place in which to work?
“Answer ‘yes’ or ‘no’.
“ANSWER: No.
“You are instructed that defendant was under a duty to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work, and this duty was a continuing one even though the work may have been fleeting or infrequent.
“You are further instructed that the duty to exercise ordinary care to furnish a safe place to work does not have reference only to the physical condition of the place itself but also has reference to the negligent acts, if any, you find of defendant’s employees on the occasion in question.
“You are further instructed that this duty is a duty which becomes more imperative as the risk increases.”
*850Special Issue No, 9 is quoted in full in our original opinion, so need no.t be repeated here.
Appellee insists that the jury’s answers to the two issues are consistent with each other and are not at all in conflict. We shall briefly present appellee’s contentions in support of this view.
APPELLEE’S CONTENTIONS .
. (1) According to appellee the jury’s answer of “No” to Special Issue No. 2 can in no wise be construed as an affirmative finding that appellant provided appellee a reasonably safe place in which to work. The answer is merely a finding by-the jury that appellee did not discharge his burden •of proof under that issue; that the issue as drawn was a “negative submission” which inquires whether the jury finds from a preponderance of the evidence that appellant “failed” or “did not” do a certain act as opposed to an “affirmative” submission, meaning on inquiry whether the jury finds that appellant did a certain act.
On the other hand the jury’s answer to Special Issue No. 9 is an affirmative finding of a specific act of negligence on the part of appellant. This finding necessarily means that appellee did discharge his burden of proof under the affirmative submission of Special Issue No. 9. In the face of this affirmative finding of negligence appellant cannot escape its liability because the jury found that the evidence did not preponderate under the negative submission of Special Issue No. 2. In support of his argument appellee cites us to Halliburton Oil Well Cementing Co. v. Groves, Tex.Civ. App., 308 S.W.2d 919, 938; Hill v. Leschber, Tex.Civ.App., 235 S.W.2d 236; Gulf States Utilities Co. v. Grubbs, Tex.Civ.App., 44 S.W.2d 1001; 41-B Tex.Jur. 780.
(2)In further support of his contention that the two answers are not in conflict but are consistent with each other appellee makes this argument:
“Even if the answer to Special Issue No. 2 were to be regarded as an affirmative finding, however, it does 'not 'appear there would be irreconcilable conflict between the two issues. From the standpoint of the jury, from all the testimony and evidence in this case, there is a reasonable explanation .of the answers to the two issues. The inquiry with respect to furnishing a reasonably safe place in which to work .could have been answered by the jury based upon testimony and evidence covering the condition of the entire Ray Yard in Denison, an area of a considerable number of acres. The inquiry was not.'. localized to the area of ‘the hump where Plaintiff alighted’; however, with respect to Special Issue No. 9, the inquiry was localized to ‘in the area of the hump’, and Special Issue No. 9 inquired only about that area, which is only a small fractional part of Ray Yard; the jury had evidence with respect to the Yard generally and had evidence with respect to the specific area of ‘the hump.’ ”
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“It is entirely harmonious to state that a reasonably safe place to work has been provided, yet the employer had committed a negligent act. Certainly one negligent act does not automatically make an area an unsafe place to work.”
(3) Appellee also reminds us of a rule which has been announced in several Texas cases to the effect that a specific finding will prevail over a general finding in attempting to reconcile a seeming conflict in jury answers. Ft. Worth & Denver Ry. Co. v. Britton, Tex.Civ.App., 310 S.W.2d 654, 657; Harbin v. City of Beaumont, Tex.Civ.App., 146 S.W.2d 297; Bragg et al. v. Hughes, Tex.Civ.App., 53 S.W.2d 151.
(4) Appellee says that “this Court cannot under the guise of state procedure defeat substantive rights granted appellee by Congress under the Federal Employers Liability Act.” This argument is based on the statement by the Supreme Court of the United States in Arnold v. Panhandle & *851Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889, as follows, “ * * * the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”