
    NORTHERN TEXAS TRACTION CO. v. WOODALL et al.
    (No. 1000-4872.)
    Commission of Appeals of Texas, Section A.
    Nov. 2, 1927.
    1. Trial &wkey;>350(5) — In personal injury action ágainst two defendants, refusal to submit pleaded defense whether negligence of one was sole proximate cause of injury held error.
    In personal injury action against traction company and automobile driver, brought by one who was riding in automobile when it collided with street car, refusal to submit issue whether automobile driver’s negligence in failing to keep lookout was sole proximate cause of injury sustained held error, where such issue was pleaded as affirmative defense, and there was evidence adduced supporting it.
    2. Trial i&wkey;,350(I)— Defendant has right to affirmative presentation of any pleaded fact which would establish defense.
    Defendant has right to affirmative presentation to jury of any fact or specified group of facts relied on in his pleadings as a defense, which, if true, would establish such defense.
    3. Appeal amt error <&wkey;>l062(2) — Refusal to submit issue whether one defendant’s negligence was sole proximate cause of plaintiff’s injury held prejudicial error, notwithstanding finding of another defendant’s negligence after discovering plaintiff’s peril.
    In personal injury action against automobile driver and traction company, finding that latter was guilty of negligence after plaintiff’s peril was discovered, which was proximate cause of injury, held not to render harmless error in refusing to submit issue whether automobile driver’s negligence in failing to keep lookout was sole proximate cause- of injury.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by W. R. Woodall against the Northern Texas Traction Company and another. Judgment for plaintiff against named defendant was affirmed by the Court of Civil Appeals (294 S. W. 873), and named defendant brings error.
    Reversed and remanded.
    Cantey, Hanger & McMahon, W. D. Smith, and E. A. McCord, all of Fort Worth, for plaintiff in error.
    Houtchens & Clark, of Eort Worth, for defendants in error.
   BISHOP, J.

Defendant in error Woodall instituted this suit' against plaintiff in error, Northern Texas Traction Company, and M. J. Ronner, to recover damages for personal injuries sustained in a collision between an automobile driven by Bonner in which he (Woodall) was riding, and a street car owned by plaintiff in error, at an intersection of public streets in the city of Fort Worth, Tex. He alleged in his petition that the operator of the street car was negligent in approaching said intersection without giving any warning and without stopping or attempting to stop the street car, and in driving the street car at an excessive rate of speed, and that such negligence was the proximate cause of his injuries. The answer of plaintiff in error, traction company, tendered the issue as to whether Bonner’s negligence in failing to keep a. proper lookout as he approached the street car track at the intersection was the sole proximate cause of the collision and injury to defendant in error Woodall, and there was evidence adduced supporting this issue.

The ease was submitted to a jury on special issues, resulting in a verdict and judgment against plaintiff in error, but in favor of its codefendant, Bonner. This judgment was by the Court of Civil Appeals affirmed, Justice Dunklin dissenting (294 S. W. 873).

The court refused to submit the issue tendered as to whether Bonner’s negligence in failing to keep a lookout was the sole proximate cause of the injury sustained. The refusal to submit this issue is assigned as error. The assignment should be sustained. The law applicable to this question is clearly stated by Justice Dunklin in his dissenting opinion as follows:

“Upon a further consideration, the writer has reached the conclusion that appellant's assignment of error, to the refusal of the trial court to submit the issue as to whether or not the defendant Bonner’s negligence in failing to keep a proper lookout for street cars on the occasion of the accident in controversy was the sole proximate cause of the collision in question, should be sustained. The court did submit the issue as to whether or not Bonner was guilty of negligence in that respect and whether such negligence was a proximate cause of the accident, to both of which issues the jury returned answers in the affirmative. The appellant specially pleaded that such negligence on the part of Bonner was the sole proximate cause of the collision and the injury resulting to plaintiff therefrom.

“It is a well-settled rule of decisions of this state that a defendant has the right to an affirmative presentation to the jury of any fact or specified group of facts relied on in his pleadings as a defense, which, if true, would establish such defense. The leading decision is M. K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058. The rule announced in that decision has been uniformly followed in many other decisions, both by the Supreme Court and Courts of Civil Appeals, such as Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Id. (Tex. Civ. App.) 196 S. W. 648; St. L. S. W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; Fort W. & D. C. Ry. Co. v. Taylor (Tex. Civ. App.) 153 S. W. 355; Jones v. M. K. & T. Ry. Co. (Tex. Civ. App.) 157 S. W. 213; G., C. & S. F. Ry. Co. v. Loyd (Tex. Civ. App.) 175 S. W. 721; Texas Electric Ry. Co. v. Sikes (Tex. Civ. App.) 251 S. W. 589; Gammage v. Gamer Co., 213 S. W. 930, by Commission of Appeals, whose conclusions were adopted by the Supreme Court; Armour & Co. v. Morgan, 108 Tex. 417, 194 S. W. 942, and many otter cases which might be cited.

“In the case of Gammage v. Gamer Co., 213 S. W. 930, noted above, plaintiff was allowed a recovery upon a finding of negligence on the part of defendant in a single respect, and the judgment was reversed by our Supreme Court for the sole reason that the court refused defendant’s requested instruction presenting the negative of that issue. The two decisions noted above, Texas Electric Ry. Co. v. Sikes, 251 S. W. 589, by the Austin Court of Civil Appeals, and G., C. & S. F. Ry. Co. v. Loyd, 175 S. W. 721, by this court, specifically support 'the assignment referred to above.,

“In the opinion of the majority on this motion for rehearing, some probable doubt is implied as to the soundness' of the opinions, in the two cases last cited, by reason of the fact that neither of them was ever passed on by the Supreme Court; no writs of error having been prosecuted to that court. The writer is of the opinion that both of those decisions were correct, since they were in full accord with and sustained by the decisions in the McGlamory Case and other decisions following it. Furthermore, our Supreme Court in Armour & Co. v. Morgan, 108 Tex. 417, 194 S. W. 942, decided the same question decided in those two cases, and in the same manner, as shown in the following quotation from the syllabus: ‘AYhere a servant is injured by negligence of the master recovery may be had through negligence of a fellow servant combined with it to cause the injury; but not where the fellow servant’s negligence was the sole cause. The pleading and evidence raising the issue as to whether the injury was caused solely by the negligence of a fellow servant, a requested instruction denying recovery in that event was improperly refused, though the charge given authorized recovery only on finding of negligence by the master.’ And that decision was cited with approval in Gammage v. Gamer Co., 213 S. W. 930, by the Commission of Appeals, which is noted above.

“In Campbell v. Johnson, 290 S. W. 526, by the Commission of Appeals,, such decisions as M. K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058, Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, and G., C. & S. F. Ry. Co. v. Gorman, 112 Tex. 147, 245 S. W. 418, are cited with approval, with the further holding that the rule therein announced, requiring an affirmative submission of a defense, is applicable to the submission of the issue of proximate cause, to the same extent as it is to the issue of negligence.

“The writer is of opinion further that the fact that the jury also found appellant guilty of negligence after the plaintiff’s peril was discovered, which was a proximate cause of the injury, furnishes no sufficient reason for holding that 'the refusal of the requested instruction now under consideration was, at all events, harmless error; since a finding, which the jury might have made under the evidence, that the negligence of the defendant Bonner was the solé proximate cause1 of plaintiff’s injury, necessarily would have precluded a finding that the alleged negligence after discovered peril was also a proximate cause of the injury. It occurs to the writer that the reason advanced by the majority would lead logically to a denial of the rule- altogether_that was announced in the 'McGlamory Case and uniformly followed by all our appellate courts in later decisions.

“Accordingly, it is thé opinion of the writer that appellant’s motion for rehearing should be granted, the assignment of error to the refusal of the trial court to submit to the jury the requested issue noted above should be sustained; that our former judgment affirming the judgment of the trial court should be set aside and the cause remanded.”

We recommend that the judgment of both courts against plaintiff in error be reversed and the cause be remanded to the district court.

GURETON, O. J.

Judgments of the district court and Court of Civil Appeals both reversed, and cause remanded to the district court, as recommended by the Commission of Appeals.

We approve the holding of the Commission of Appeals on the questions discussed in its opinion. 
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