dissenting.
Instead of reaching the merits of Mason’s objections to the charge, the majority holds he waived his objections. I disagree. In State Dept. of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 241 (Tex.1992), the Supreme Court said:
There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.
By its opinion in Payne, the Supreme Court indicated a major policy shift. The Court said:
The flaws in our charge procedures stem partly from the rules governing those procedures and partly from caselaw applying those rules. Last year we asked a special task force to recommend changes in the rules to simplify charge procedures, and amendment are under consideration. Rules changes must await the completion of that process; we do not review our rules by opinion.... We can, however, begin to reduce the complexity that caselaw has contributed to charge procedures.
Id. at 241.
Instruction on duty of care
In point of error one, the majority holds that Mason did not preserve the error in the charge. Mason’s attorney could not have made his objection any clearer. He argued that the jury was not given any specific definition or instruction regarding Southern Pacific’s duty similar to one given regarding Mason’s duty. In his objection, Mason stated that the duty of care under FELA is mutual between an employer and employee, and that to instruct the jury on Mason’s duty but not Southern Pacific’s duty, was error.
The error in Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994), was similar to the one here. In Spencer, Mr. Spencer complained on appeal that the question submitted to the jury did not specify for which actions Eagle Star could be liable. Id. In that case, the Supreme Court said “an objection is sufficient to preserve error in a defective instruction. A request of substantially correct language is not required.” Following Spencer, we should reverse for retrial because the instruction accompanying the question was defective and Mason objected to it.
Today’s opinion increases the complexity that caselaw has contributed to the charge procedures. I would sustain point of error one.
OLIVER-PARROTT, C.J., joins this dissenting opinion.