I cannot agree that supplemental issue A properly submitted the issue of unavoidable accident. It is well settled that a general denial puts upon the plaintiff the burden of proving that the injury did not result from an unavoidable accident. Galveston, H. S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S.W. 534, 538.
If there be any evidence sufficient to support a finding that the injury was caused by some unknown cause or in some manner which is not explained, or under circumstances differing from those relied on and constituting a part of appellee's case and which circumstances rebut the charge of alleged negligence for which appellant is responsible, then the issue of unavoidable accident should have been affirmatively submitted. Wichita Falls Traction Co. v. Craig (Tex.Civ.App.) 250 S.W. 733; Colorado S. Ry. Co. v. Rowe (Tex.Com.App.) 238 S.W. 908, 910; Russell v. Bailey (Tex.Civ.App.) 290 S.W. 1108; Dallas Ry. Terminal Co. v. Garrison (Tex.Com.App.) 45 S.W.2d 183, 185.
In Galveston, H. S. A. Ry. Co. v. Washington, supra, it was held that a general charge placing the burden of proof upon the plaintiff to prove by a preponderance of the evidence each material allegation in his petition and instructing the jury that if he failed to prove any one or more of the allegations of his petition by a preponderance of the evidence to find for the defendant upon all such issues, did not cover the defense presented by the *Page 474 requested charge which, in effect, presented the issue of unavoidable accident.
The court also held that the defense presented in the requested charge was not embraced in the charge on contributory negligence. In discussing these matters, the court said: "In its general charge the court stated to the jury that the issues presented on the part of the plaintiff were that his injury was occasioned by the negligence of the defendant, specifying particularly the acts of negligence which produced the injury, and that the defendant pleaded a general denial and contributory negligence on the part of the injured boy. We must look at the court's charge as practical experience teaches that a jury, untrained in the law, would view it; and, so regarding it, we are of opinion that a jury might not have understood that the general denial made the issue of unavoidable accident, or that the injury had occurred in a manner not alleged and claimed by the plaintiff, neither of which issues was expressed in the charge of the court. * * * Under such circumstances the defendant had the right to call upon the court to submit specifically the group of facts and circumstances which raised the issues expressed in the special charge. Without this protection, the jury, in rendering a general verdict under a charge so general as that given, may have disregarded a defense which they might have given effect to if it had been brought to their attention."
In Colorado S. Ry. Co. v. Rowe, supra, the Court of Civil Appeals (224 S.W. 928, 937) held that the issue of unavoidable accident should not have been submitted because 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," but the Commission of Appeals reversed that holding, saying: "Defendant's general denial made the issue of accident. This issue was co-ordinate with the issue of negligence. If a finding that the defendant was negligent was a negative finding that there was no accident, likewise, a finding that death resulted from accident would have been a negative finding that there was no negligence. Therefore, each issue should have been submitted to the jury so that notice of both might have been given, thereby affording them equal opportunity to attract the attention and win the favor and secure the approval of the jury instead of requiring the issue of accident to stand outside with only the probability of being considered and with no greater possibility of favor than silent approval involved in the rejection of its rival."
This holding was expressly approved by the Supreme Court. In Dallas Ry. Terminal Co. v. Garrison, supra, the Court of Civil Appeals [30 S.W.2d 1108] held that the submission of the issue of unavoidable accident was properly refused by reason of the fact that the testimony of the motorman and of the driver of the automobile showed conclusively that both were guilty of negligence. Section B of the Commission of Appeals reversed this holding, and, after quoting from the evidence, said:
"There is therefore presented a theory under which the accident might have been found to have happened from causes different from those relied upon by the parties as constituting negligence of the motorman or the negligence of the driver of the car. Under such circumstances, the issue of unavoidable accident is presented. [Citing cases.]
"It is asserted by defendant in error that, even if the issue of unavoidable accident is presented by the evidence, there was no error in refusing to submit the same, because the finding of the jury that both the motorman operating the street car and the driver of the automobile were guilty of negligence excludes the theory of inevitable accident. This court has often held that a defendant cannot be deprived upon any such ground of the affirmative submission of a defense properly pleaded and sustained by proof. Montrief Montrief v. Bragg (Tex.Com.App.)2 S.W.2d 276; Colorado Southern Ry. Co. v. Rowe (Tex.Com.App.)238 S.W. 908.
"A defendant is as much entitled to an affirmative submission of his defenses, which are sustained by proof, as is the plaintiff to have his grounds of recovery so submitted. A plaintiff, relying for a recovery upon certain negligent acts of a defendant, cannot be deprived of an affirmative submission thereof upon the ground that the jury has excluded the issues pleaded by him by findings made upon a submission of defendant's defenses. In respect to the submission of issues for the determination of the jury, both parties to a lawsuit stand upon the same plane. Each is entitled to an affirmative presentation of *Page 475 all issues properly pleaded and sustained by proof. It is no answer for either to say that the finding of a jury on his issues, which have been submitted, discloses the existence of a state of facts which operate to deprive his adversary of a submission of properly pleaded issues which are raised by the evidence."
The holdings of the Commission in this case were also expressly approved by the Supreme Court. The writer has no quarrel with the definition of an unavoidable accident as found in Dallas Ry. Terminal Co. v. Darden, referred to in the main opinion, but I do not think, as said by section A of the Commission of Appeals, in Boyles v. McClure, 243 S.W. 1080, 1084, "that a finding of negligence, and that the injury complained of was the proximate result thereof under a given state of facts, always excludes the theory of inevitable accident and renders it unnecessary to submit the same to the jury as an issue in the case."
I am further of the opinion, from a study of the authorities above quoted, that a defendant is entitled to have the issue of unavoidable accident submitted where the evidence is sufficient to show that the accident is attributable to some unknown or unexplained cause.
It also appears from the holding in Dallas Ry. Terminal Co. v. Garrison, supra, and at least some of the authorities there cited, that the court should submit the issue of unavoidable accident in all cases where the evidence presents a theory under which the accident might have happened from causes different from those relied upon by the parties as constituting negligence of the defendant or the negligence of the plaintiff.
If I be correct in my interpretation of these holdings, then, certainly, merely asking the jury if the accident occurred without negligence on the part of either plaintiff or defendant would not be sufficient.
Fort Worth R. G. Ry. Co. v. Sageser, Stedman Fruit Co. v. Smith, and Forehand v. International G. N. R. Co., cited in the main opinion do not approve such a submission of the issue. The question in all of those cases, as I understand them, was as to the sufficiency of definitions of unavoidable accident and in none of them was any attack made on the manner in which the issue was submitted.
Believing that the submission of the issue of unavoidable accident does not always depend upon whether or not negligence is shown and that the issue as submitted is not the affirmative submission of the issue to which appellant was entitled, I must dissent from my brethren in the affirmance of this cause.