Northern Texas Traction Co. v. Wright , 62 S.W.2d 624 ( 1933 )

LATTIMORE, Justice.

Appellee sued for damages alleging a negligent sudden stopping of appellant’s street car and the leaving of a banana peel or other slippery substance on the car platform by which he was thrown from his feet and injured.

The defendant denied each, and offered testimony that the negro was already crippled, and contended that his fall was by virtue of his own physical defects. Upon a jury verdict on special issues, judgment was for plaintiff.

The court submitted the following special issue: “Do you find and believe from a preponderance of the evidence that the injuries, if any, complained of occurred unexpectedly and without fault or negligence on the part of either plaintiff or defendant?”

This placed the burden of proof on the defendant. It has been too often held that the burden of proof on unavoidable accident is on plaintiff for us to here express any dissent therefrom. The court further charged the jury that the burden of proof was on the plaintiff to establish the answer “No” to that question. This left the jury with two conflicting statlements on such burden of proof.

Nor do we believe that the issue was immaterial under the above state of facts.

The appellee by cross-assignment complains of the use of the idea expressed by “unexpectedly” in said issue.

The element of “reasonable foresight” has become firmly imbedded in our definitions of proximate cause, although an analysis of the theory will show that in truth “reasonable foreseeableness” is a portion of the scope of an inquiry into negligence. The court had defined negligence. Here the court asks if the accident was without negligence of the parties, and in the same question mentions specifically a portion of the elements of negligence, to wit, “unexpectedly.” This should not be done.

It was not proper to tell the jury that, if they answered that question “Yes,” they need not answer any other question. Other issues presented other portions of the plaintiff’s case which the jury might answer in such a manner as to present a conflict from which would result either a mistrial or the jury’s reforming its verdict with the attendant possibility that this answer might be changed. The wisdom of appropriate time-saving instructions has been proven, 'but such instructions must not cut off the jury from answering questions which might change the’ effect of the verdict.

We considered all assignments, and the remainder are overruled. The judgment of the trial court is reversed, and the cause is remanded.