On or about the 24th day of September, 1926, appellee was injured in a collision between one of appellants' trucks and an automobile driven by Mrs. O. B. Glass, in which appellee was riding as a guest. The collision occurred where Silver street enters at right angles West Capitol avenue. Silver street does not cross the avenue, but ends at that point. Appellants' truck was being driven from Silver street into the avenue with the purpose of turning down the avenue to the left. Mrs. Glass was driving her car to the west, and the collision occurred on the left-hand side of the avenue as the truck was about to make the turn. Appellee pleaded many grounds of negligence, but judgment was rendered in her favor in the sum of $1,750, on the following findings: That the truck driver failed to keep a lookout for cars approaching the intersection of Silver street and West Capitol avenue from the east "just prior to the collision; that he was driving his truck at a greater rate of speed than a person of ordinary prudence would have done under the same or similar circumstances, and that he failed to apply his brakes after entering the avenue; that each of these acts was negligence and a proximate cause of the collision and plaintiff's resulting damages.
In answer to issues pleaded by appellant, the jury found that appellee did not fail to exercise ordinary care in keeping a lookout to discover vehicles as the car in which she was riding approached the intersection.
Appellants vigorously assail the verdict of the jury on the issues against them as being against the great weight and preponderance of the evidence. Without quoting from the testimony, it is our conclusion, after carefully reviewing the statement of facts, that the verdict has support.
Issue No. 1 was in the following form:
"Did the defendant's driver keep a lookout for cars approaching the intersection of Silver Street and West Capitol Avenue from the east just prior to the collision?"
Against this issue appellant advances the following proposition:
"It was error for the Court, over Appellant's objection and exception, in submitting Special Issue No. 1 to the jury to impose on Appellant's truck driver the duty to keep a lookout for approaching cars from the East `just prior to the collision,' it being a charge on the weight of the evidence and imposing an absolute duty on the truck driver to look in a particular direction at a particular time when the question for the jury was simply whether under all the circumstances the truck driver kept such lookout as an ordinarily careful man would have done."
This issue was not subject to appellant's exception. It was not on the weight of the evidence. It imposed no duty, absolute or otherwise, on the truck driver to keep any sort of lookout at any particular time. The issue submitted was one of fact only. It was a pertinent inquiry, pleaded by appellee, whether or not the truck driver kept a proper lookout for automobiles as he approached Capitol avenue. Appellee rested her case on his keeping this lookout "just prior to the collision." The jury gave a negative answer to that question. No legal
conclusions followed from the answer as a matter of law, but its legal effect was properly submitted by further inquiring of the jury whether such act was negligence and if such negligence was a proximate cause of the injury. In answering question No. 1, the jury had before it "all the circumstances" in evidence. None of them were withdrawn by the court's charge and no comment was made upon their weight. The other propositions attacking the charge as being on the weight of the evidence are overruled without further comment.
The court did not err in refusing to permit the truck driver to testify that "in his opinion" the driver of the car in which appellee was riding "could have gone on her side of the street, so as to pass to the rear of appellants' truck." Nor was error committed in refusing to permit appellants' witness, George, who had viewed the scene of the collision and testified to the physical facts surrounding the accident, to testify that in his opinion "the vehicle in which appellee was riding ran into and against appellants' truck." Opinion evidence of this character is not admissible. Kirby Lumber Co. v. Adams (Tex.Civ.App.) 291 S.W. 279.
Appellant, by special issues, requested the court to submit to the jury whether or not the negligence of Mrs. O. B. Glass, the driver of the car in which appellee was riding, was the sole proximate cause of the collision. Appellee objects to our considering these issues on the ground that they were not properly presented to the trial court, and that exceptions were not properly reserved to their refusal. We have gone to the transcript in trying to understand appellee's criticisms of these exceptions, and have concluded that they are properly before us. This issue of sole proximate cause was not affirmatively pleaded by appellant, and was in no way involved in appellants' special defenses, and, if before the court, was raised only by the general denial. The evidence raised the issue in appellants' behalf that its truck driver was not guilty of negligence causing the collision. The evidence raised the issue that Mrs. Glass was guilty of negligence as she approached the intersection of West Capitol avenue and Silver street, and that her negligence was the sole proximate cause of the collision. We are in agreement in this construction of the evidence. Because the issue that Mrs. Glass' negligence was the sole proximate cause of the collision was not specially pleaded, my Brethren have concluded that appellants were not entitled to have it affirmatively submitted to the jury. Under the decisions, this issue was an affirmative defense. In discussing the issue of sole proximate cause as a defense, the Commission of Appeals in Northern Traction Co. v. Woodall, 299 S.W. 220, adopted the dissenting opinion of Mr. Justice Dunklin, wherein he said:
"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 other cases which might be cited."
The authorities relied upon by my Brethren in support of their conclusion all contain similar announcements of the law; that is, that an affirmative defense specially pleaded and raised by the evidence must be submitted to the jury.
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On or about the 24th day of September, 1926, appellee was injured in a collision between one of appellants' trucks and an automobile driven by Mrs. O. B. Glass, in which appellee was riding as a guest. The collision occurred where Silver street enters at right angles West Capitol avenue. Silver street does not cross the avenue, but ends at that point. Appellants' truck was being driven from Silver street into the avenue with the purpose of turning down the avenue to the left. Mrs. Glass was driving her car to the west, and the collision occurred on the left-hand side of the avenue as the truck was about to make the turn. Appellee pleaded many grounds of negligence, but judgment was rendered in her favor in the sum of $1,750, on the following findings: That the truck driver failed to keep a lookout for cars approaching the intersection of Silver street and West Capitol avenue from the east "just prior to the collision; that he was driving his truck at a greater rate of speed than a person of ordinary prudence would have done under the same or similar circumstances, and that he failed to apply his brakes after entering the avenue; that each of these acts was negligence and a proximate cause of the collision and plaintiff's resulting damages.
In answer to issues pleaded by appellant, the jury found that appellee did not fail to exercise ordinary care in keeping a lookout to discover vehicles as the car in which she was riding approached the intersection.
Appellants vigorously assail the verdict of the jury on the issues against them as being against the great weight and preponderance of the evidence. Without quoting from the testimony, it is our conclusion, after carefully reviewing the statement of facts, that the verdict has support.
Issue No. 1 was in the following form:
"Did the defendant's driver keep a lookout for cars approaching the intersection of Silver Street and West Capitol Avenue from the east just prior to the collision?"
Against this issue appellant advances the following proposition:
"It was error for the Court, over Appellant's objection and exception, in submitting Special Issue No. 1 to the jury to impose on Appellant's truck driver the duty to keep a lookout for approaching cars from the East `just prior to the collision,' it being a charge on the weight of the evidence and imposing an absolute duty on the truck driver to look in a particular direction at a particular time when the question for the jury was simply whether under all the circumstances the truck driver kept such lookout as an ordinarily careful man would have done."
This issue was not subject to appellant's exception. It was not on the weight of the evidence. It imposed no duty, absolute or otherwise, on the truck driver to keep any sort of lookout at any particular time. The issue submitted was one of fact only. It was a pertinent inquiry, pleaded by appellee, whether or not the truck driver kept a proper lookout for automobiles as he approached Capitol avenue. Appellee rested her case on his keeping this lookout "just prior to the collision." The jury gave a negative answer to that question. No legal
conclusions followed from the answer as a matter of law, but its legal effect was properly submitted by further inquiring of the jury whether such act was negligence and if such negligence was a proximate cause of the injury. In answering question No. 1, the jury had before it "all the circumstances" in evidence. None of them were withdrawn by the court's charge and no comment was made upon their weight. The other propositions attacking the charge as being on the weight of the evidence are overruled without further comment.
The court did not err in refusing to permit the truck driver to testify that "in his opinion" the driver of the car in which appellee was riding "could have gone on her side of the street, so as to pass to the rear of appellants' truck." Nor was error committed in refusing to permit appellants' witness, George, who had viewed the scene of the collision and testified to the physical facts surrounding the accident, to testify that in his opinion "the vehicle in which appellee was riding ran into and against appellants' truck." Opinion evidence of this character is not admissible. Kirby Lumber Co. v. Adams (Tex.Civ.App.) 291 S.W. 279.
Appellant, by special issues, requested the court to submit to the jury whether or not the negligence of Mrs. O. B. Glass, the driver of the car in which appellee was riding, was the sole proximate cause of the collision. Appellee objects to our considering these issues on the ground that they were not properly presented to the trial court, and that exceptions were not properly reserved to their refusal. We have gone to the transcript in trying to understand appellee's criticisms of these exceptions, and have concluded that they are properly before us. This issue of sole proximate cause was not affirmatively pleaded by appellant, and was in no way involved in appellants' special defenses, and, if before the court, was raised only by the general denial. The evidence raised the issue in appellants' behalf that its truck driver was not guilty of negligence causing the collision. The evidence raised the issue that Mrs. Glass was guilty of negligence as she approached the intersection of West Capitol avenue and Silver street, and that her negligence was the sole proximate cause of the collision. We are in agreement in this construction of the evidence. Because the issue that Mrs. Glass' negligence was the sole proximate cause of the collision was not specially pleaded, my Brethren have concluded that appellants were not entitled to have it affirmatively submitted to the jury. Under the decisions, this issue was an affirmative defense. In discussing the issue of sole proximate cause as a defense, the Commission of Appeals in Northern Traction Co. v. Woodall, 299 S.W. 220, adopted the dissenting opinion of Mr. Justice Dunklin, wherein he said:
"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 other cases which might be cited."
The authorities relied upon by my Brethren in support of their conclusion all contain similar announcements of the law; that is, that an affirmative defense specially pleaded and raised by the evidence must be submitted to the jury. But, as I understand these decisions, none of them say that the issue of sole proximate cause cannot be submitted, unless specially pleaded. My Brethren will state their positions more fully in Rio Bravo Oil Company v. Daniels (No. 1732) 20 S.W.2d 369, recently decided by this court, where the same proposition is involved and in which I have reserved my dissent.
However, as it has become my duty to write the opinion in this case, I will here state my conclusions on this important question of pleading. To recover, appellee was required to show (a) damages suffered by her; (b) negligence on the part of appellants; (c) that such negligence was a proximate cause of her damages. Under the general denial, appellants had the right to offer evidence to the effect that (a) appellee had suffered no damages; (b) that they were not negligent; (c) that, if negligent, such negligence was not a proximate cause of the damages sued for. Evidence on these three defenses was admissible under their general denial. No rule of law said to them that proof on any of these issues must be made in a particular manner. They could have confessed negligence and proximate cause and defeated a judgment by showing that appellee had suffered no injuries. They could have confessed injuries and negligence and escaped liability by showing that
their negligence was not a proximate cause of the damages. Evidence rebutting the proximate relation of the negligence to the damages sued for was admissible under the general denial. Evidence that the negligence of Mrs. Glass was the sole proximate cause of the accident was admissible under the general denial. My Brethren do not controvert this proposition, but they say, in the absence of a special answer charging that the negligence of Mrs. Glass was the sole proximate cause of the collision, that appellants were not entitled to an affirmative submission of that issue to the jury. It is their proposition that no "affirmative defense" should be submitted, unless specially pleaded. It is my proposition that all issues admissible under a general denial must be affirmatively submitted upon a proper request. On this proposition I can draw no distinction between the issue of "sole proximate cause" and the issue of "unavoidable accident." Unavoidable accident simply raises the issue that the negligence of the defendant was not a proximate cause of the accident, but that some other agency was the "sole proximate cause." Though plaintiff has made a prima facie case, the defendant may escape liability by showing that plaintiff's damages resulted from a condition in which neither the plaintiff nor defendant was guilty of negligence; that is, that some outside agency not connected with the conduct of plaintiff or defendant was the sole proximate cause of the damages sued for. Not to sustain that proposition, for it is established law of the state, but only to illustrate what I am saying, I quote as follows from Railway Co. v. Washington, 94 Tex. 510, 63 S.W. 534:
"The defendant was not required to specially plead that the injury was the result of an unavoidable accident to entitle it to have such issue submitted to the jury. The evidence was not only admissible for the purpose of contradicting the witness James Washington, but as a substantial defense under the general issues, and if believed by the jury, it would have been a complete defense to the suit."
Since I can draw no distinction as a question of pleading between the issue that the negligence of Mrs. Glass was the sole proximate cause of plaintiff's injury and the issue that the damages sued for resulted from a condition in which neither the plaintiff nor the defendant was negligent — that is, the issue of unavoidable accident, as defined by the Washington Case, supra; Railway Co. v. Rowe (Tex.Com.App.) 238 S.W. 908; Eastern Texas Electric Co. v. Hunsucker (Tex.Civ.App.) 280 S.W. 887; Russell v. Bailey (Tex.Civ.App.) 290 S.W. 1108 — I think it was error to refuse the submission of this issue of sole proximate cause. In other words, if the defendant, under a general denial, can have the submission of an issue that denies affirmatively the negligence of both parties, I cannot see why he cannot have the submission of an issue that denies affirmatively his negligence. But, as I understand the authorities, the question has been foreclosed, and the holding of my Brethren is in direct conflict on identical facts with the Amarillo court in City of Pampa v. Todd. 11 S.W.2d 247; with the Dallas court in Dallas Railway Co. v. Speer, 299 S.W. 511; and with the Fort Worth court in Baker v. Beatty, 235 S.W. 971. In none of these cases was the issue of sole proximate cause pleaded. It was pleaded in the Todd Case but stricken out on exception. Without any pleading, but relying solely on the general denial, in each of these cases the appellant requested the issue of sole proximate cause, and its refusal constituted reversible error. The Speer Case was a suit by a passenger in an automobile for damages resulting from a collision between the car in which he was riding and a street car. The defendant requested the submission of the issue that the negligence of the driver was the sole proximate cause of plaintiff's injuries, being identical with the issue we have here, Mr. Chief Justice Jones, speaking for the court, said:
"There was evidence offered by appellant to the effect that, had the driver of the automobile continued his course down Bryan street without an application of the brakes, he could have passed the street car in safety. This evidence raised the issue of the negligence of the driver of the automobile in applying the brakes on this occasion, and, as there is evidence offered by appellant from which the jury could have exonerated appellant from any negligence, the issue is presented as to whether the negligence of the driver of the automobile was the sole proximate cause of appellee's injuries. A submission of this issue was requested, and its refusal assigned as error. We are of the opinion that the court erred in not submitting this issue, and the assignment of error in this respect is sustained."
The Supreme Court of Missouri, in Bragg v. Street Railway Co.,192 Mo. 331, 91 S.W. 527, thus discussed the effect of a general denial:
"Indeed, it may well be doubted whether it was necessary for appellant to have pleaded, as it did, the acts of the Missouri Pacific Railway Company in order to have the benefit of such acts as a defense; for, under a general denial, any fact which goes to show the facts constituting the cause of action set forth in the petition are not true may be proved. It is only where a defense is made in the nature of a confession and avoidance that affirmative matter must be set forth, and it would seem that, if A. sues B. for striking and injuring him, B. under a general denial might show that C. struck the blow, and such proof would be some evidence that B. did not. Jones v. Rush, 156 Mo. 364, 57 S.W. 118; 5
Ency. of Pl. Pr. p. 717; Young v. Kansas City, 27 Mo. App.loc.cit. 118 et seq., and cases cited. But this view is somewhat obiter."
As my Brethren find no error in the record, it is their order that the judgment of the trial court should be, and the same is hereby ordered, in all things affirmed, to which I most respectfully dissent.