On Motion for Rehearing. Appellant's motion for rehearing should be granted, and the judgment reversed and the cause remanded.
Appellant pleaded the defense that the collision was the result of unavoidable accident; that is to say, that it could not reasonably have been foreseen and avoided by either of the parties. The evidence under this defense was undoubtedly sufficient to raise the issue and to warrant the jury in resolving that issue either for or against that defense. The collision occurred in the nighttime upon a somewhat remote country road. The lights on one of the vehicles were dim; those on the other bright. The darkness, the lateness of the hour, the condition of the road rendered it difficult for the drivers to estimate the speed or location in the roadway of the approaching cars, confusing each as to the purpose or probable course of the other. Each driver testified that he was on his right and the other on the wrong side of the road, and assumed the other would pull over to the proper side. Appellee was in the process of pulling over to his right, and succeeded in getting the front of his car out of the way of the other, which caught his tardy left rear wheel. Appellee testified that, if he had made this attempt a little sooner, he would have gotten into the clear, and there was some evidence that his rear wheels skidded into the path of the other vehicle, which is easily conceivable under the peculiar facts of the case. This group of facts, together with others not necessary to set out, if found by the jury to be true, would have warranted a finding that the accident was unavoidable, and appellant's request that this issue be submitted to the jury should have been granted. It was refused however.
It will not do to say, in support of the refusal to submit the issue of unavoidable accident, that the jury, having found that the collision proximately resulted from the negligent failure of the appellant's driver to stop his truck in time to avoid the accident, could or would not have found that the accident was unavoidable. For the jury may have felt that they were obliged to find a reason for the collision by means of some one of the issues submitted to them, and, being denied the privilege of finding it to have been unavoidable under the peculiar circumstances of the case, they may have hit upon the issue of failure to stop as the next most probable cause. It is the settled law of this state that a defendant is entitled to an affirmative submission to the jury of any fact or group of facts pleaded by him and supported by material evidence, which, if found true, would exculpate him from liability, and he may not be deprived of this right through an adverse finding upon some other issue the answer to which would render him liable. Dallas R. Co. v. Speer (Tex.Com.App.) 299 S.W. 507; Northern Texas Traction Co. v. Woodall (Tex.Com.App.) 299 S.W. 220; Montrief v. Bragg (Tex.Com.App.) 2 S.W.2d 276. Appellant's fourth proposition of law, in which this question is appropriately raised, is sustained.
Appellees recovered a substantial amount of damages for expenses incurred by them as a result of the accident, without pleading or evidence that such expenses were necessarily incurred or reasonable in amount. Such showing is essential to recovery for damages of this nature. This conclusion requires that appellant's sixth proposition be sustained.
After the jury had received the case, and during their deliberation thereon, they returned to the courtroom for further instructions. When so assembled in open court, in the presence of counsel, the foreman orally asked the court a question of law, which the court refused to answer, directing the jury to be governed by the charge as originally given; whereupon one of the jurors other than the foreman orally asked the court, "What does the court mean by the term `at the time of the collision,' does that mean at the time of the `impact'?" to which the court orally replied, "Yes;" whereupon "to the action of the court in answering the question of the juror, orally, and which question was a question not in writing, and which answer of the court was not given in writing, and because the matter was fully covered by the court's charge, as given, the defendant then and there in open court excepted." The matter is properly presented in appellant's eleventh proposition.
It is provided in article 2198, Rev.St. 1925: "After having retired, the jury may ask further instructions of the court touching any matter of law. For this purpose they shall appear before the judge in open court in a body and through their foreman state to the court, either verbally or in writing, the particular question of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be given except in *Page 149 conformity with the preceding rules and only upon the particular question on which it is asked."
The procedure described was in contravention of the statute in two respects; that is to say, the question presented to and answered by the court was not stated by the foreman, but by an individual juror other than the foreman, and the court's instruction in answer thereto was not given in writing, as affirmatively prescribed by the statute, but orally, as expressly prohibited by the concluding provision of the statute. The instruction related to a material phase of the case, and, being given in a manner expressly prohibited by the statute, undoubtedly constituted error. Floyd Parker v. M. T. Bailey (Tex.Com.App. No. 1044 — 5240) 15 S.W.2d 1033.
The following special issues, among others, were submitted to the jury:
No. 4. "Do you find from the evidence that said truck was being driven down the middle of the road and without sufficient room to its left for approaching cars to pass on said road?"
No. 10. "Do you find from the evidence that the driver of the truck, instead of turning his truck to the right, crowded plaintiff's car and did not give plaintiff his half of the road, but continued traveling down the center of the road and on the left side thereof?"
The jury answered issue No. 4 in the negative, and No. 10 in the affirmative. It is obvious that the two issues are identical in effect, and that they could not be consistently answered diversely. By answering the first in the negative, the jury found that appellant's truck was not being driven down the center of the roadway, and that it gave sufficient roadway to its left for appellee's car to safely pass. As there was no pleading or evidence that the truck was being operated to its left of the center of the roadway, this finding that it was not on the center completely exonerated appellant from any charge that it encroached upon appellee's side of the roadway.
Under issue No. 10, quoted above, the jury found that, "instead of turning his truck to the right," appellant's driver "crowded plaintiff's car and did not give plaintiff his half of the road" and "continued traveling down the center of the road and on the left side thereof." The two findings are therefore in direct and obvious conflict, rendering both ineffectual. The issue involved was clearly raised by the evidence, and the parties were entitled to have it definitely and consistently determined.
Many other questions are presented by appellant, but it is hoped that, by another trial upon clarified and simplified pleadings, those questions may be eliminated from the case. Appellant's propositions, other than those discussed, therefore, will be overruled, not upon their merits, but because they have become immaterial to the appeal, in view of reversal upon other grounds.
Appellant's motion for rehearing is granted, and the judgment is reversed, and the cause remanded.