The opinion
On, Motion for Rehearing.
PLEASANTS, C. J.
After giving appellant’s motion for rehearing careful consideration, we adhere to the conclusion expressed in our original opinion that we should not reverse the judgment on the ground that the finding of the jury on the issue of discovered peril is so against the great weight and preponderance of the evidence as to authorize this court to say that it is clearly wrong, and to set it aside. The evidence upon this issue is not in conflict, and the Supreme Court, in answer to certified questions submitted by-us in this case, says that upon this evidence the fireman on the engine in the exercise of ordinary care might have reasonably inferred that the occupants of the automobile were not aware of the approach of the train, and therefore the issue of discovered peril was a question for the jury. 268 S. W. 923 . The majority of this court had not thought such inference reasonable, but must follow the opinion of the Supreme Court, and we are not authorized to hold that the jury were clearly wrong in drawing an inference from undisputed facts which the Supreme Court says is a reasonable inference.
With due deference to the opinion of the Commission of Appeals above cited, it seems to the majority of this court that the cases quoted from give no support to the conclusion expressed in the opinion that the facts in this case raise the issue of discovered peril. In the quotation from the first case cited, that of Hines v. Arrant (Tex. Civ. App.) 225 S. W. 767 , the point decided was that the evidence was sufficient to sustain a finding that the engineer on the train saw the plaintiff in the perilous position in time to have avoided his injury, notwithstanding the engineer’s testimony that he did not see the plaintiff. The question of whether the engineer, if he saw the plaintiff, should, in the exercise of ordinary care, have realized his peril, was not an issue in this case.
The other quotation from the case of Railway Company v. Finn, ' 109 S. W. 918 , 101 Tex. 511 , is equally inconsequential as authority for the holding that the evidence in this case raises the issue of discovered peril. This difference of opinion, however, is but
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another illustration of the fallibility of human judgment. Ordinary minds equally honest often draw different conclusions from the same facts. The majority of this court can find nothing in the cited opinion of the Commission of Appeals which militates against their conclusion in the case of Railway Co. v. Wagner, 262 S. W. 902 , that the facts in that case did not raise the issue of -discovered peril.
The soundness of our holding in that case, that ordinary care did not require the operatives of a train who saw persons in an automobile slowly approaching a railroad crossing', with the approaching train in full view, to assume that the automobile might go upon the crossing in front of the train when there was nothing in the circumstances shown by the evidence from which the operatives of the train could reasonably apprehend that those in the automobile were unaware of the approach of the train or would endeavor to cross the track in front of it is not questioned by the opinion of the Commission of Appeals in this case. On the contrary, that opinion recognizes the rule announced by us in the Wagner Case and predicates its holding that the issue of discovered peril is raised in this case on the conclusion that upon the evidence in this case the jury might find that—
“It would have been reasonably apparent to a person of ordinary prudence, in the.use of ordinary care situated as was the fireman, that those in the automobile were- not aware of the approach of the train.”
If the rule announced by the majority of this court in the Wagner Case is not the law, then the qualifying word “discovered” has ceased to have any meaning in applying the rule measuring the duty of operatives of a train to persons who carelessly place themselves in a perilous position with reference to a moving train and the efficient operation of trains in commerce and travel will be unreasonably hindered. We shall continue to apply the well-established rule followed in the Wagner Case until the Supreme Court expressly repudiates it.
The majority of the court agree with appellant that the statement in the original opinion in this case that the evidence in this case is “strongly tending toward if not compelling a finding” that the occupants of the automobile were unaware of the approach of the train is not borne out by the record. The evidence on this issue is sharply conflicting. But the question of whether the occupants of the automobile actually saw the train is not material on the issue of discovered, peril. If, as held by the Supreme Court, the circumstances shown by the evidence justify the conclusion that it appeared to the fireman that the occupants of the automobile did not know the train was approaching, it became the duty of the fireman to act upon this reasonable appearance of danger to the deceased, and his failure to use proper care to prevent the injury could not be excused by showing that the occupants of the car saw the train approaching the crossing. This disposes of appellant’s contention that the trial court erred in not submitting to the jury the question of whether the occupants of the automobile saw the train approaching the crossing.
As'indicated by what we have above said, the majority of the court do not fully concur in the reason given in our original opinion for not sustaining appellant’s assignment complaining of the refusal of the trial court to give requested charge No. 3 set out in the opinion. We adhere, however, to the conclusion that the assignment should not be sustained.
The requested charge is not accurate, in that it only predicates the duty of the fireman to use all the means at hand consistent with the safety of the train to prevent the injury to deceased upon it reasonably appearing to him that the deceased would not stop, but would attempt to pass in front of the moving train. The rule is that the duty of the operatives of the train to use every reasonable means at their command to prevent an injury arises when it reasonably appears to them that a person in or approaching a place of danger will probably or likely not extricate himself therefrom or will go into the place of danger. Railway Co. v. Higginbotham (Tex. Civ. App.) 155 S. W. 1025 ; Railway v. Wagner (Tex. Civ. App.) 262 S. W. 902 ; Railway v. O’Donnell, 92 S. W. 409 , 99 Tex. 639 . This inaccuracy in the charge might have misled the jury, and the trial court did not err in refusing to give it.
Other complaints in appellant’s motion relate only to the submission of other grounds of liability than that of discovered peril ; and, since the Supreme Court has held that the issue of discovered peril is raised by the evidence, and we find no reversible error in the submission of that issue, any error in the submission of other grounds of liability becomes immaterial.
The last proposition • presented in appellant’s brief and again urged in its motion for rehearing is as follows:
“The law requires trial courts, in all civil eases, submitted on a general charge or by special issues, to prepare their charge in writing, signed by the court, and submit said charge to the opposing counsel for examination, and it was never contemplated by the Legislature that the trial court should simply accept from the plaintiff’s attorney a complete charge, unsigned, and automatically pass said charge to defendant’s attorneys for examination and criticism; but it was the intention and purpose of the Legislature to require the trial judge to submit a written charge, signed by him, to the opposing counsel, and require him to either give said charge as prepared, or to correct same so as to meet and conform to the objections filed by counsel.”
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We agree with appellant that the manner in which the charge of the court was prepared for submission to counsel for examination, as stated in the proposition, is not the method contemplated by the statute. But the. facts stated ,in the proposition are not shown by any bill of exceptions, and, so far as the record discloses, appellant has suffered no injury by the alleged failure of the court to strictly comply with the statute in the matter of preparing and submitting his charge to counsel for examination.
We think the motion for rehearing should be refused, and it has been so ordered.
Refused.