Hankamer v. Roberts Undertaking Co.

135 Tex. 139

Opinion

per curiam :

The application for writ of error is "dismissed w. o. j.— correct judgment.”

We agree that the issue of unavoidable accident was raised by the evidence in this case for the second reason given in the opinion of the Court of Civil Appeals. (139 S. W. (2d) 865). We disagree with the following holding announced in the note to the opinion in Independent Eastern Torpedo Co. v. Carter (Civ. Apps.), 131 S. W. (2d) 125:

“In all cases wherein there are controverted issues of fact, of defendant’s negligence as proximate cause of an injury and of plaintiff’s negligence as proximate cause of the injury, the issue of unavoidable accident also necessarily arises as an issue of fact.”

Opinion delivered June 19, 1940.