On' Motion for Rehearing.
In an extended motion for rehearing plaintiff in error so earnestly and vigorously attacks the original opinion that we feel the necessity of again considering the propositions advanced.
It is first contended that this court erred in holding that the trial court correctly refused to give defendant’s special charge No. 1. This charge is set out in the original opinion. As appears from the language of the special charge, it was not requested for the purpose of correcting or in lieu of the charge already given by the court on negligence. Subdivision (b) of the general charge is;
“Negligence, as that term is used in this charge, is the doing of that which a very careful .ard prudent person would not do under the same or like circumstances, or the failure to ■do that which a very careful and prudent person would do under the same or like circumstances.”
It will be seen that this charge is more favorable to appellant in defining the degree ■of care required of carriers of passengers •than it should have been. The only objection made to this charge by appellant is that it required “a higher degree of care on the part of the defendant than the law provides.” We must therefore consider special charge No. 1, supra, as having been requested by way of supplement, rather than for the purpose of correcting the court’s charge on negligence. If special charge No. 1 had correctly stated the degree of care required of appellant in inspecting its road, rails, and ties to discover the defect, we think the court was nevertheless correct in refusing it. The only special issue submitting negligence is as follows:
“Second. If you have answered yes to the last question, then say whether or not employees of said railway company were guilty of negligence at the time of said derailment, in any of the respects claimed by said plaintiff in his petition.”
This is answered, “Yes.” The several grounds of negligence claimed in the petition should have been submitted separately. V. S. C. S. 1984 (a); Emerson-Brantingham Co. v. Roquemore, 214 S. W. 679, and authorities cited. Appellant made no objection to this issue, because it did not distinctly and separately submit the several grounds of negligence as alleged, nor did appellant request the court to submit an issue requiring the jury to find whether the derailment was the result of a latent defect in the rails or ties, and by such failure invited the court to find upon that issue. V. S. C. S. art. 1985. Under such circumstances, a charge, of course, was unnecessary. We have again reviewed the record and statement of facts, and are convinced that there is no evidence from which the jury might have inferred that the accident was caused by a latent defect. A stronger reason, however, why the special charge should not have been given is that there is no evidence whatever to show that the road, ties, and rails had ever been inspected.
As suggested by appellee, the affidavits of the jurors were not evidence to be considered by the court upon the hearing in regard to the remark made by the juror Ferguson. Dallas Street Railway Co. v. Kelley, 142 S. W. 1005; article 2021, V. S. C. S. The express provision of the statute is that the granting of new trials under such circumstances is within She discretion of the court. While the communication by the juror was improper, the burden of showing injury rests upon the appellant, and nothing appears from the record which would authorize us to hold that the trial court abused his discretion in overruling the motion. The motion for rehearing is- therefore overruled.'