(dissenting on rehearing).
After careful reconsideration and study of the record I find myself unable to agree with my esteemed brethren on the ultimate disposition of this appeal. I am in complete accord with the majority opinion as it relates to all points presented with the exception of the point of error relating to the alleged irreconcilable conflict between Issues Nos. 2 and 9. Since I am unable to agree that a fatal conflict exists I respectfully record my dissent.
The majority has concluded that this case should be reversed solely because of an alleged- irreconcilable conflict between the answer of the jury to Special Issue No. 2 and the answer of the jury to Special Issue •No. 9. -These issues, together with the in.struction following Issue No. 2, have been ■copied verbatim in the original opinion and the opinion on rehearing. The primary .question, therefore, is whether a conflict in -fact exists between the answers assigned by •.the jury to the two questions submitted to them. .A conflict exists in a jury verdict if the answers to two or more special issues cannot both be true. When both issues, and the jury’s answers thereto, are subjected to •¿'careful exegesis I am convinced that there is- no actual conflict at all. Special Issue .No. 9 presents no problem. It amounts -to an affirmative submission of the -question of whether the act on the part of the -railroad in -permitting -chatt, gravel, - rust,.-mounds .of dirt, or debris to -remain in the are^ of the hump where plaintiff alighted from the. train was negligence. To this question the 'jury gave an affirmative answer; The plaintiff therefore fulfilled his obligation to discharge the burden of securing the jury answer of “Yes” to this essential-element of recovery.
As to Special Issue No. 2, and the jury answer thereto, we have an entirely different situation. By this .issue the trial court asked the jury whether they found 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. In reply the jury said “No”. What did the jury mean by this answer ? I can conceive of no other meaning than that the answer is merely a finding by the jury that appellee did not discharge his burden of proof as to that issue. It must be observed that the issue, as submitted, amounted to a “negative submission” as opposed to an “affirmative submission” as in Special Issue No. 9. The answer “No” to such issue merely means that the jury found that the evidence did not preponderate in favor of a finding of failure to provide a reasonably safe place to work. However, the mere fact that the plaintiff failed to sustain his burden of proof on this issue alone cannot reasonably to be said to be equivalent to an affirmative finding that the railroad company did provide appellee with a reasonably safe place to work on the occasion in question, or that its servants were not negligent in any particular act or omission.
Thus we have a situation where the ap-pellee has failed to sustain his burden of proof, and secure a finding on his general issue of failure to provide a safe place to work but, in Special Issue No. 9, appellee has successfully maintained his burden of proof to establish specific negligence which contributed to bring about his injuries. I conclude that the jury’s answer to Special Issue No. 2 is not an affirmative finding of any fact, or omission of duty, but is nothing more than a statement by the jury that the evidence presented by appellee was not sufficient to preponderate the evidence in favor of the finding sought by the issue. The mere failure to support his burden of proof on this issue does not, as a matter of law, amount to a converse finding against appellee. 41-B Tex.Jur. 780; 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. Accordingly, both answers of the jury to the two special issues involved may be well true and yet not be in conflict.
*853Even though we should assume, arguen-do, that the answer of the jury to Special Issue No. 2 amounted to an affirmative finding, as contended by appellant, and as found by the majority in their opinion on rehearing, there is, in my judgment, a compelling reason why there is no fatal or irreconcilable conflict between that answer and the answer of the jury to Special Issue No. 9. By both state and federal law we are enjoined to the performance of a duty to construe verdicts as not being irreconcilably conflicting when there is any reasonable explanation of seeming conflicts. Courts should always assume the honesty and at least ordinary intelligence of a jury and that they never intend that their specific findings of fact should be destroyed by a general finding in seeming conflict therewith. 41-B Tex.Jur., Sec. 580, p. 795; Bragg et al. v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562.
In Gallick v. Baltimore & Ohio RR. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the United States Supreme Court said:
“But it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: ‘Where there is a view of the' case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.’ Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798. We therefore must attempt to reconcile the jury’s findings, by exegesis if necessary, as in Arnold v. Panhandle & S. F. R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889; McVey v. Phillips Petroleum Co., 288 F.2d 53 (C.A. 5th Cir.); Morris v. Pennsylvania R. Co., 187 F.2d 837 (C.A.2d Cir.) * * * before we are free to disregard the jury’s special verdict and remand the case for a new trial.”
Applying these well established rules to the record before us, it is evident that we can, as we must, reconcile the jury’s answers to these issues. Special Issue No. 2 was a general issue, whereas Special Issue No. 9 was a specific issue of specific negligence. The specific finding of the jury in answer to Special Issue No. 9 should prevail over any possible general finding as contained in Special Issue No. 2 when we attempt to reconcile an alleged 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, 146 S.W. 2d 297; Bragg et al. v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Panhandle & Santa Fe Ry. Co. v. Arnold, Tex.Civ.App., 283 S.W.2d 303, reversed, 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889.
In my opinion the majority has applied a strained and harsh construction .upon the alleged conflicting verdict of the jury in this case. I believe that the law imposes upon us, as a reviewing court, the duty of analyzing the jury’s verdict in the most favorable light and resolving any possible conflict so that the verdict may stand, rather than fall. In my humble judgment this verdict presents one that can easily be reconciled, and should be reconciled, in the interest of justice.
Finally, I think that we must bear in mind that we are here dealing with a Federal remedial statute, the Federal Employers’ Liability Act. The Supreme- Court of the United States has repeatedly held that this Federal remedial statute is liberally construed- - in favor of an injured workman. As stated by the Supreme Court of the United States in Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct 840, 1 L.Ed.2d 889; “* * * the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”
In Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143, the Supreme Court of the United States said:
“Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plain*854ly and reasonably, made, is not to be defeated under the name of local practice.”
The majority contends .that the question before us involves the substantive rights of the parties rather than procedural rights. I cannot agree. I believe that the same substantial question of state procedural rights is involved here as was involved in Arnold. In. this case Shelton has sustained his burden to establish an affirmative finding of negligence on the part of the railroad company which contributed to cause his injuries for which the jury said he should be compensated. The mere fact that Shelton failed to introduce sufficient evidence, in the opinion of the jury, to preponderate in favor of his general allegation of failure to provide a safe place of work, does not, in my judgment, defeat his right to recover under this Federal statute.
I would sustain the motion for rehearing and affirm the judgment of the trial court.