Texas & New Orleans Railroad v. Hayes , 1955 Tex. App. LEXIS 2220 ( 1955 )

HUGHES, Justice

(concurring).

Irrespective of whether.there is any evidence of contributory negligence (acts or omissions) on the part of appellee other than that inquired about in special issue No. 13, I am of the opinion that appellant has waived its right to have a jury finding thereon because of its failure to request additional controlling issues under Rule 279, T.R.C.P. That rule provides that when the court submits a case upon special 'issues, as here, he ' shall submit the controlling issues made by the pleadings and evidence and that -failure to submit an .issue shall not be deemed ground for reversal unless its submission, in substantially correct wording, has been requested in writing by the complaining; party.

Appellant here made no request for the submission, of any special or controlling issue made by the; pleadings' and evidence. It, requested, submission of an issue inquiring if appellee “was negligent” on the occasion in .question. This, is not a “controlling issue.” Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, and authorities therein cited. The requested issue was, therefore,.not. in “substantially. correct wording” within the meaning of Rule 279.