Dallas Ry. & Terminal Co. v. Fuchs

On Rehearing.

In the original opinion it was held the failure to submit the issue' of negligence arising out of the failure to furnish a safe place ior Mrs. Fuchs to alight was not reversible in the absence of written request for its submission.

At the time doubt was entertained as to the correctness of such ruling, but it was made upon the view that the issue of negligence was supplementary to the main issue of the failure to furnish a safe place to alight, and as a supplementary issue the court was authorized to find upon the same under the rule announced in Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Under recent opinions of the Commission of Appeals, expressly approved by the Supreme Court, we have reached the conclusion that we erred in the ruling indicated. Dallas Hotel Company v. Davison (Tex. Com. App.) 23 S.W.(2d) 708; Federal Surety Co. v. Smith (Tex. Com. App.) 41 S.W.(2d) 210; International-Great Northern Ry. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669.

We, therefore, now sustain appellant’s assignment complaining of the court’s failure to submit the issue of negligence arising out of the failure to furnish a safe place to alight.