The opinion
Mr. Chief Justice Alexander,
dissenting.
I am not in accord with the decision in this case. The judgment is being reversed solely because of the failure of the court to properly define the term “unavoidable accident.”
It is true that the court, in effect, instructed the jury that the. collision was an unavoidable accident if it occurred without the negligence of petitioner’s agent; whereas the jury should have been instructed that it was an unavoidable accident if it occurred without the negligence of either of the parties to the suit. But in my opinion no injury resulted to this petitioner by reason of the failure of the court to so define the term. The parties agreed that no injury .resulted from the failure to include plaintiff’s name in the definition. There were really six defendants in the suit, to-wit: Ben Ogletree, G. R. Ogletree, Earl McAllister, Homer Davis, W. G. Smith, and petitioner. If the names of all these six defendants had been included in the definition, the plaintiff would have been entitled to an *231 answer that the collision was an unavoidable accident — which would have been a favorable answer to plaintiff — if the evidence had shown that either of the six defendants had been guilty of negligence proximately causing the collision; whereas, as the term was defined, the plaintiff, in order to secure a favorable answer was required to prove that this particular defendant, ' petitioner herein, was guilty of negligence proximately causing the collision. This placed a greater burden on plaintiff than he would have had if the term had been definied as contended for by petitioner; and, consequently, the definition given was more favorable to petitioner than the definition which he requested. The only purpose to be served in submitting the issue of unavoidable accident to the jury is to call the matter to the attention of the jury so that it will not be overlooked, and so that the jury will understand that they do not necessarily have to find that some party to the suit was to blame for the collision. Wheeler v. Glazer, 137 Texas 341, 347 , 153 S. W. (2d) 449 . The definition given by the court fully protected petitioner’s interest. It told the jury that the accident was an unavoidable one, so far as petitioner was concerned, if it occurred without the negligence of petitioner’s driver. This was as far as petitioner was interested in- the matter. It is true that the other defendants, if they had lost in the lower court, might have had grounds to complain of the definition, but not so with the petitioner. It was clearly called to the attention of the jury that it would be an unavoidable accident, so far as petitioner was concerned, if it occurred without his negligence. Consequently no injury resulted to the petitioner, and for that reason the judgment should not be reversed.
Opinion delivered December 2, 1942.
Rehearing overruled Jan. 13, 1943.