Colorado & S. Ry. Co. v. Rowe

On Motion for Rehearing and for Additional Findings.

Appellant’s motion for rehearing has been earnestly urged by written and by oral argu-. ment. We have carefully considered it,- and have concluded that it should be overruled. All of the contentions presented therein have been -sufficiently discussed, we think, in the original opinion, except as to two matters which we think require further statement and discussion:

In the argument on presentation of that part of the motion, complaining of our overruling the seventeenth and eighteenth assignments of error, an entirely new point has been presented, the decision of which requires a more extended statement than we made in the original opinion. These two assignments are in reference to the charge of the court on the burden of proof, and the refusal of the court to give a special instruction requested in reference thereto. In paragraph 1, subd. 1, of the court’s charge, the jury were instructed that—

“The burden of proof is on the plaintiff to make out her case by either positive or circumstantial evidence, or both, and by a preponderance of the evidence,” etc.

The second paragraph of this subdivision of the charge reads as follows:

“The burden of proof upon each special issue submitted to you is upon the party having the affirmative of said special issue. If the affirmative of any special issue is proved by a preponderance of the evidence, you will answer such special issue in the affirmative, and if the affirmative of any special issue is not proved by a preponderance of the evidence, you will answer such special issue in the negative.”

Objection was made to this charge in the language reproduced in the nineteenth paragraph of the motion for new trial in the lower court, and which is the eighteenth assignment of error on this appeal; this assignment being as follows:

“Because the court erred in instructing the jury in section 2, paragraph 1, of his main charge, wherein the court instructed the jury that the burden of proof upon each special issue submitted was upon the party having the affirmative of such special issue; the error being that the jury being unlearned in the law could not and did not probably understand upon whom the affirmative of any issue might bé. This being true, the court, in said section 2, paragraph 1, should specifically have' instructed the jury as to what special issues the burden of proof was upon the plaintiff, and as to what special issues the burden of proof was upon the defendant; that is, the court, in his charge in question should have singled out the special issues upon which the burden of proof was upon the plaintiff, and should have instructed the jury that the burden of proof was upon the plaintiff relative to said issues, and should likewise have done so relative to the special issues upon which the burden of proof was - upon this defendant. I-Ience the error of the court.”

The proposition under this assignment is in practically the same language as that of the assignment itself.

The seventeenth assignment is as follows:

“Because the court herein erred in refusing to give in charge to the jury .this defendant’s specially requested instruction No. 19½, which sought to instruct the jury that the burden of proof was upon the plaintiff relative to special issue No. 1, to prove that the car furnished was not in a reasonably safe condition; and, relative to- special issue No. 2, submitted that the burden was upon the plaintiff to prove that the defendant was negligent; and, relative to special issue No. E>, submitted that the burden was upon the plaintiff to prove said issue; and, relative to special issue No. 4, that the burden of proof was upon the plaintiff. And the defendant says that this special charge No. 19½ should have been given, for it correctly instructed the jury as to the burden of proof on these four issues, which were material issues, and that it would have cured the error contained in the court’s main charge on the question of burden of proof, and which is pointed out in paragraph 19 herein [referring to the nineteenth paragraph of the motion for new trial, which is the eighteenth assignment of error just quoted].”

Special issue No. 1, as submitted by the court, reads as follows:

“Was the El Paso & Southwestern coal car,, which was furnished to the crew in charge of the train at the time and place alleged in plaintiff’s petition, in a reasonably safe condition for the said crew and Edgar Rowe to handle in the manner and on the road over which they undertook to haul it? Answer Yes or No.”,

On argument of the motion for rebearing it is for the first time suggested that the charge on the burden of proof as quoted above is positively erroneous, in that as the result of the manner of the submission of the first issue the burden of proving that the car was in a reasonably safe condition was put upon the defendant. We think the charge was erroneous as now contended, and if the point is sufficiently raised in the brief to be entitled to consideration the case must be reversed on these assignments.

The objection to the charge in effect admitted that the charge was correct in terms, but, on account of its generality and the fact that the jury was unlearned in the law, might not be understood by the jury, which objec*937tion we thought, and still believe, to be untenable. This method of statement of the burden of proof is one quite generally used by the trial judges, and it evidently did not occur to the court or to the attorneys that on account of the peculiar manner of the submission of one of the issues the application of the charge did affirmatively place the burden on the wrong party. So we do not think the objection to the charge or the proposition thereunder are sufficient to raise this point. This objection, not having been made to the charge of the court at the time, was waived (article 1971, R. C. S.), and the appellant’s right to have it further considered is dependent on the answer to the question as to whether it cquld be raised under the seventeenth' assignment, based on the refusal of the requested special instruction, which did correctly state the law as to the burden of proof on this issue.’ Some of the Courts of Civil Appeals have held that since the failure to object to the incorrect charge of the court is a waiver, amounting to an approval of the charge, and there would be a conflict between the general charge and the special charge, if given, the party so failing to object cannot assign error on the refusal of the court to give the correct special instruction. Railway Co. v. Barnes, 168 S. W. 992, and I. & G. N. Ry. Co. v. Bartek, 177 S. W. 139, are illustrative of these holdings. In the Bartek Case Chief Justice Key dissented, and the Commission of Appeals in deciding the case intimated that if the special instruction had been presented in due time such charge “should be held sufficient as an objection to the court’s charge on that subject, even though defendant failed to file objections to the charge.” I. & G. N. Ry. Co. v. Bartek (Com. App.) 213 S. W. 602. This court has dissented heretofore from the rule announced in the Barnes Case and those which follow it. Rabinowitz v. Smith Co., 190 S. W. 199; Railway Co. v. Alcorn, 178 S. W. 833. So we feel bound to consider the point if it is raised by the seventeenth assignment, or any proposition thereunder. The reason stated in the assignment itself as to why it was error to refuse the charge was:

“That it would have cured the error contained in the court’s main charge on the question of burden of proof, and which is pointed out in paragraph 19 herein (being the appellant’s eighteenth assignment of error).”

The proposition under the assignment is the same as the assignment itself. Appellant, in presenting the eighteenth assignment states that it is “in aid of assignment 17.” So it will be seen that the point presented by both these assignments and the propositions thereunder is the same; that is, in effect that the charge, while correct in terms, might be misunderstood by the jury, and that the objection now urged is not presented by these assignments or any proposition thereunder. It is well settled, we think, that the appellate courts, in considering assignments of error, are confined to the reasons assigned as contained either in the assignments themselves or in germane propositions thereunder. M., K. & T. Ry. Co. v. Maxwell, 104 Tex. 632, 143 S. W. 1147; Id., 59 Tex. Civ. App. 139, 130 S. W. 728; Ariola v. Newman, 51 Tex. Civ. App. 617, 113 S. W. 157; Western Union Telegraph Co. v. Vance, 151 S. W. 910, par. 15; McCall v. Elliott, 159 S. W. 872; St. Louis Railway Co. v. Drahn, 143 S. W. 357. We conclude, therefore, that the assignments should be overruled. .

In the original opinion we expressed a doubt as to whether the evidence was sufficient to raise the issue of accident, and the appellant complains of our failure to make an affirmative finding on this matter. We think the appellant is entitled to such a finding, and after a review of the evidence have concluded that it is sufficient to raise the issue of accident in this way. The engineer of the train testified that the coal dumped about a mile back of where Rowe fell, and had all “rolled out up to the point where he fell.” This evidence is not in accord with that of other witnesses, but the defendant of course would have the right to have the jury pass on its truth. The tendency of the evidence of this witness was to show that the dumping of the coal, which was the immediate result of the only negligence charged against the defendant, had no connection with the fall of the deceased, and to show that such fall was the result of some other cause. There is a presumption, of course, against the existence of any negligence on the part of the deceased, which may have caused him to fall, and we have held, and still adhere to that ruling, that the evidence does not raise an issue of negligence on Rowe’s part. This evidence and the presumptions thus tending to eliminate other causes for the fall, the only one remaining to account for it is that of accident, and this theory is compatible with the other facts, being sufficient to account for the separation of the train and the air hose, etc. While we have concluded that the issue is thus presented by the evidence, we still think that it was merely a negative of the issue submitted as to whether the negligence of the defendant was the proximate cause of the deceased falling from the train. The very fact that a general denial is a sufficient pleading on which to base the issue proves this. We do not care to add anything further to what we have said on this subject in our original opinion and in the opinion in the case of Texas Employers’ Insurance Association v. Downing, 218 S. W. 121, paragraphs 14-16.

We are requested in the motion for additional findings or fact to copy in our opinion the five typewritten pages of the paragraph of the answer, in which the defendant pleads *938negligence on the part of the deceased, Rowe, and which pleading we said in our opinion only obscurely stated the particular act of negligence upon which defendant sought to have submitted special issues. We are also asked to make certain findings as to defendant’s objections and exceptions to the court’s charge. We decline to comply with these requests. Our statements as to such matters are not findings of fact, and will not prejudice the right of appellant to have our construction of the pleading and such matters corrected by the Supreme Court if that court should conclude that we were in error in our conclusions.

We are also asked to point out the testimony of any witness to the effect that there would be any jarring of the- cars as a result of running over the coal on the track, o'r testimony to the effect that the tendency of the wheels running over the coal would be to whip up the air hose, hanging down some distance behind such wheels. Our attention has not been called to the testimony of any witness as to these facts, but we think that such conclusions are deducible from the application of natural laws, known ter all men, to the facts in evidence.

The requests for other findings are as to mere evidentiary facts, which we do not consider it necessary to set out.

With this statement, both motions referred to are overruled.