On Motion for Rehearing.
[15] Appellant, in its motion for rehearing in this cause, has challenged the correctness of the opinion of this court with reference to practically all assignments of error passed upon; but, after a careful consideration of the motion for rehearing, we are still convinced that we were correct in overruling all of appellant’s assignments of error, with the exception of the ninth assignment. As to that assignment we have concluded, after careful consideration of the motion, that we were in error, and that the ninth assignment ought to have been sustained. That assignment was as follows:
“The court erred in failing and in refusing to submit special issue No. 6 requested by appellant, which was as follows:
“ ‘Was the plaintiff, J. S. Lynch, at and just before the time he was injured, guilty of contributory negligence? You will answer this question “Yes” or “No.”
“ ‘And in this connection you are instructed that if you find and believe from a preponderance of the evidence that after the plaintiff, J. S. Lynch, entered the coach of defendant company, and after the train had started, that the plaintiff, J. S. Lynch, went to the rear end of the smoker, and attempted to alight therefrom while said .train was in motion, and walked down said steps for the purpose of getting off of said train, knowing at the time the speed of said train, and you further find and believe from the evidence that when he reached the bottom step of the coach he immediately stepped off on the ground in the way and manner that you find from the evidence he did step off, if you find that he did step off of said train, and you further find and believe that a man of ordinary prudence would not have attempted to get off of the train while it was in motion, and at the speed it was running, and in the way and manner that the plaintiff, J. S. Lynch, attempted to get off of said train, then you are instructed that the plaintiff would in law be guilty of contributory negligence, and you should answer this question “Yes.” ’ ”
In the original opinion in this case we said, in substance, that appellant was not entitled to have this issue submitted to the jury, grouping the facts relative to the defense of contributory negligence, as done in the requested charge, for the reason that appellant had interposed only" a general plea of contributory negligence, not specifying any facts upon which it would rely as constituting such negligence, and that, therefore, it could not complain of the refusal of the court to give this special instruction grouping these specific facts, and thus have them affirmatively and pointedly submitted to the jury for a finding on that issue. On that point our former opinion was supported by the opinions of several of our Courts of Civil Appeals, among them being Railway Co. v. Parker, 20 Tex. Civ. App. 470, 49 S. W. 717, 50 S. W. 606, Railway Co. v. Hagood, 21 Tex. Civ. App. 442, 52 S. W. 574, and several other opinions by the Courts of Civil Appeals of this state following the Parker and Hagood Cases. On motion for rehearing, however, appellant for the first time haa called our attention to the case of Railway Company v. Mangham, 95 Tex. 413, 67 S. W. 765, the opinion in which was by the Supreme Court of this state, speaking through Judge Brown. After careful consideration of the decision in that case, which was in answer to a certified question from the Galveston Court of Civil Appeals, we have concluded that our holding in the former opinion, to the effect that appellant was not entitled to the requested instruction, for the reason that its plea of contributory negligence was only a general one, was error, and that the decision of the Supreme Court in that case is conclusive in favor of the contention of appellant on this point.
In the Mangham Case this point arose on the following statement and question made by the Galveston court to the Supreme Court:
“The defendant pleaded merely: (1) A general denial. (2) A general plea of contributory negligence. The plea fails to set forth any acts of contributory negligence on the part of the plaintiff, but simply pleads that ‘plaintiff’s injury was caused by lack of care and contributory negligence, under the circumstances of the case, in getting upon, or attempting to get upon, the engine of defendant, which defendant pleads in bar of plaintiff’s cause of action.’ (3) And the general plea that plaintiff assumed the risk of said defective step. * * *
“The appellant asked a special charge of contributory negligence, in which the facts were grouped and the law applied thereto. This charge was refused, and error is here assigned therefor.
“The court’s charge of contributory negligence was in general terms, but as full as defendant’s plea, and correct as far as it went.
“Question: Where the facts in evidence relied on by'the defendant to constitute contributory negligence are not specifically pleaded, and the court fails to group the facts, but charges in general terms on contributory negligence, is the defendant entitled to have given a special charge grouping the facts and applying the law thereto?”
To this statement and question the Supreme Court answered:
“If the facts grouped in the appellant’s charge were admissible under the plea of contributory negligence, and the charge was correct, it should be given. A defendant may plead contributory negligence in genei'al terms, and, if not excepted to, the plea will authorize the introduction of testimony to establish the fact of negligence. *724Telegraph Co. v. Jeanes, 88 Tex. 230 [31 S. W. 186]. The pleadings furnish the standard by which the court determines the admissibility of evidence, but it is the duty of the court to instruct ‘the jury as to the law arising on the facts.’ Rev. St. art. 1317.”
It is clear to us that the opinion of the Supreme Court in the Mangham Case is contrary to what we held, on this point in the former opinion, and we were therefore in error in overruling appellant’s ninth assignment of error, and now hold that the same must be sustained, and the motion for rehearing is granted, and the judgment of the trial court will be reversed and the cause remanded.
[16,17] We also said in the former opinion, in substance, .that we were not sure but what the special charge was correctly refused because it took from the jury the issue of proximate cause. After further consideration on this point, however, we have concluded that if the plaintiff, Lynch, was guilty of negligence, which was left as a question of fact to be determined by the jury, then it follows as a matter of law that such negligence proximately contributed to his injury. It is the contention of appellee, however, that this requested instruction takes from the jury both the issue of negligence on the part of the plaintiff and the issue of proximate cause; but it will be readily seen, upon consideration of the requested charge, that it does not take from the consideration of the jury, as a question of fact, the issue of negligence on the part of the plaintiff, but it does take from the jury the question as to whether such negligence, if it existed, proximately contributed to the plaintiff’s injury, and properly so.
Nothing could be gained by a further discussion of the question at this • time, and, since we have been convinced that we were in error in not sustaining appellant’s ninth assignment of error, we now do so; and the judgment will be reversed, and the cause remanded, and it is so ordered.