On Motion for Rehearing.
Appellant asserts that judgment should be rendered in its favor, instead of remanding the cause for a new trial. This, upon substantially the following proposition:
The verdict was for it on all of ap-pellees’ grounds of recovery except the failure to have a flagman at the crossing; and since an essential element of that ground was not submitted and not requested by appellees, the verdict would not support a judgment for appellees, and therefore the trial court should have rendered judgment for appellant, upon its motion for judgment.
Appellant propounds the following inquiry in this regard:
“Suppose the Trial Judge in this cause and upon the verdict of the jury as actually received, had rendered a judgment for the defendant below, and suppose the plaintiff below had excepted to the rendition of that judgment and this case were before this court with a judgment in favor of the defendant with the plaintiff appealing therefrom, what action would this court take on that appeal?”
Our answer to this inquiry is that the judgment would be reversed.
We recognize, as pointed out in the motion, that there are cases holding that a special issue verdict which omits some essential element of a ground of recovery, submitted and found upon in other respects, will not support a judgment upon that ground, although no objection was made below to the omission. This was conceded in our original opinion. This holding, however, is in direct conflict with other decisions, which were uniform in this regard up to a few years ago.
The theory upon which a ground of recovery is submitted is that the findings of the jury thereon will form the basis, and the only basis, of a judgment by the court upon that particular ground. Therefore, any omitted element must be presumed as found in support of the other findings upon that ground. It is as though the court had directed a verdict upon the omitted issue in favor of the affirmative of the ground to which it appertains. Otherwise, why *932submit any issues upon such ground at all? Such issues would be purely academic and supererogatory, if, after the jury’s findings thereon, the trial judge would be at liberty to find the omitted element in favor of the otherwise losing party. As pointed out in our original opinion, such holding would destroy the 1897 amendment to the special verdict statutes.
We recognize the importance of terminating litigation, an outstanding objective of the 1897 amendment. But this objective is not paramount over all others, and must give way when the latter become more important. A fair and impartial trial is a prime objective; as is also the right of a trial by jury upon the facts. The decision in Ormsby v. Ratcliffe was essential to preserve these rights to the losing party in the trial court. The holding that an omitted element in a ground of recovery, otherwise submitted, must be presumed in support of the submitted issues upon said ground is essential to preserve the rights of the winning party below.
The right of review itself conduces to a prolongation of litigation; and to that extent defeats the objective of a speedy termination of litigation. It is regarded, however, as essential to the ends of justice, a higher and more important objective than speed alone in terminating litigation. A proper balance between expedition, on the one hand, and preserving the substantial rights of the litigants, on the other, is the paramount goal toward which judicial administration should ever strive, however short it may fall in attaining it.
Expense of further trial to the litigant not at fault is one of the unrecompensable damages or inconveniences incident to litigation in this state at this time. Taxable costs of errors committed in the trial must necessarily fall upon the litigants. In so far as the costs of appeal are concerned, they fall upon the one in whose favor the error was committed (the prevailing party below or losing party on appeal). This is true although the appellee may have done everything in his power to prevent the error in the trial court. For example, both parties request submission of a certain element in a ground of recovery otherwise submitted. The trial court takes the view that the evidence is conclusive as to such element, and refuses both requests. If such refusal should constitute reversible error, the prevailing party below would be compelled to pay the costs of appeal and the ultimately losing party the additional costs of further trial below. The same rule now exists where the prevailing party below has not requested the submission of the omitted element, and, therefore, in a sense may be said to be at fault and contribute to the error. In such situation appellant urges that the appellee should be penalized, not only by having to pay the costs of appeal, but by being denied any further trial of the case. The manifest injustice of such a holding has already been pointed out. It would make of mere procedure a most perilous expedient, not alone to the average lawyer, but to the most skillful. A more equitable imposition of the burdens of litigation, by imposing the expense of delay and further trial upon the party responsible for it, might be devised. But the mere fact that our present procedure admits in some instances of injustice and inequity in this regard is no warrant for imposing upon the party at fault the forfeiture of all his substantial rights.
We have written thus at length upon this matter, because of the noted conflict in authority; and the fact that the arguments now presented are frequently urged in other cases before this court.
The motion is overruled.
Overruled.