Ramin v. Cosio , 131 Tex. 362 ( 1938 )

A judgment for damages growing out of an automobile collision was entered by the trial court in favor of defendants in error against plaintiff in error. This judgment was affirmed by the Court of Civil Appeals. Ramin v. Cosio et al.,85 S.W.2d 802.

The facts are fully stated in the opinion of that court. Only those necessary to a proper understanding of the question discussed will be mentioned by us.

Issues of negligence and of contributory negligence were submitted, and prefaced with the following as the only charge on the burden of proof:

"This case will be submitted to you upon special issues, the answers to which you will make as you may find and believe the facts to be from a preponderance of the evidence, by which is meant the greater weight of the credible testimony."

The following is typical of the issues submitted:

"Do you find that at and immediately before the collision Odean Ramin was operating the Ford car at an excessive and dangerous rate of speed?"

Charges in substantially the same language as the quoted prefatory charge have been frequently condemned. It failed to indicate within itself any burden of proof, and might have been understood by the jury as requiring a "no" as well as "yes" answer from a preponderance of the evidence in the quoted special issue, and others similarly phrased.

The question has been fully considered by Judge CRITZ in Texas Employers' Ins. Assn. v. Lemons, 125 Tex. 373, 83 S.W.2d 658, and will not be further discussed. Other similar holdings are:

Baker v. Campbell, 81 S.W.2d 728; Munves v. Buckley,70 S.W.2d 605; Harrison-Wright Co. v. Budd, 67 S.W.2d 670; Brotherhood of L. F. E. v. Hall, 64 S.W.2d 1044; Chicago, R.I. G. Ry. Co. v. Vinson, 61 S.W.2d 532; International Shoe Co. v. Hachar, 60 S.W.2d 810; Eagle Star British Dominions Ins. Co. v. Head, 47 S.W.2d 625, 122 Tex. 147,53 S.W.2d 768; Psimenos v. Huntley, 47 S.W.2d 622; Houston T. C. Ry. Co. v. Stevenson, 29 S.W.2d 995; Boswell v. Pannell, 180 S.W. 593.

While the evidence supporting the present judgment was overwhelming, we are not able to demonstrate, and therefore decline to hold, that the above error was harmless.

The issues of "new and independent cause," of "unavoidable accident" and that of "the negligence of another as the sole proximate cause," are not raised in this case. This sufficiently appears from the facts mentioned by the Court of Civil Appeals.

We will assume that technical errors pointed out in exceptions to the charge will be eliminated on another trial.

Judgments of the trial court and Court of Civil Appeals reversed and cause remanded.

Opinion adopted by the Supreme Court February 23, 1938.

Rehearing overruled April 27, 1938.