The opinion
POPE, Justice.
I concur in the majority opinion, but wish to express separately my views in connection with the matter of conflicts as presented by this case. I believe the judgment should be affirmed in the face of the point urging that there is a conflict in the findings.
First: The verdict is susceptible of a construction which permits no room for a conflict. The collision could have occurred from any one of four different causes: It could have occurred from one or more of the acts of negligence with which the plaintiff charged the defendant, from' one or more of the acts of negligence with which the defendant charges the plaintiff, from an unavoidable accident, or from a cause not alleged and claimed by either the plaintiff or the defendant, but the cause in fact. Unless we are content to close our eyes to what so frequently occurs in the trial of a case, we may riot assume that the cause was fully pleaded. We may presume that the court submitted every issue pleaded, but this does not mean that every correct issue was in fact pleaded. The jury believed there was no negligence on the issues pleaded and submitted. They also believed that the accident was not unavoidable. This verdict means that the accident resulted from fault of one of the parties which was not pleaded. So believing they certainly would find that it was not an unavoidable accident. There is no statement of facts pertaining to the acts of negligence before us, and while I am content to presume the court submitted everything pleaded and raised by the evidence, I am not content to presume the court submitted everything not pleaded but raised by the evidence. The jury, it is believed, seized upon the 'cause in fact which was omitted from the pleadings, but inferable from the evidence. Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Com.App., 7 S.W.2d 521 .
That there may be negligence in fact, as distinguished from negligence pleaded and relied upon, is also recognized in Galveston, H. & S. A. Ry. Co. v. Washington, 94 Tex. 510 , 63 S.W. 534, 538 , which case struck down a general charge, saying: “We must look at the court’s charge as practical experience teaches that a jury, untrained in the law, would view it; and, so regarding it, we are of opinion that a jury might not have understood that the general denial made the issue of unavoidable accident, or that the injury had occurred in a manner not alleged and claimed by the plaintiff, neither of which issues was expressed in the charge of the court.” (Italics mine.)
Unless this is the rule, we require a jury to ignore the- cause in fact by reason of the straight jacket in which they are placed by the pleader.
Second: The only way the plaintiff could win his cause of action was by the discharge of his burden of proof both on his primary negligence issues and on the unavoidable accident issue. He obtained the necessary favorable answer to the issue on unavoidable accident by a finding that the collision was not unavoidable, i. e., somebody was negligent. He failed on his primary negligence issues because the jury found the defendant was not negligent. The plaintiff, in other words, did not have a single affirmative answer upon which he ■could win his case. It is argued that the finding that the, collision was not an accident raises a .conflict. • The plaintiff, is in no position to claim this conflict as we shall demonstrate. The jurors by their answer to unavoidable accident, have said that either the plaintiff was negligent, or the defendant was negligent, or both of them were negligent, because they have said that the accident could have been avoided.
*942 We shall assume that they mean by this that the plaintiff was negligent. In that instance, the plaintiff still could not win because he had unfavorable answers on his primary negligence issues and also the jurors, we shall assume, have said, by their answers to unavoidable accident, that he was negligent. Therefore, he would not be entitled to win.
We shall assume that the jury meant, by their answer to unavoidable accident, that both the plaintiff and the defendant were negligent. In that instance, there is a conflict.
We shall assume that the jury meant by their answer to unavoidable accident that only the defendant was negligent. Here we have a conflict" between the jury answers on primary negligence, finding defendant not negligent, and the answer to unavoidable accident, which we have now construed to mean that he was negligent. But this is more than the jury found. They found that somebody was negligent, and it is urged that we should stretch the finding to mean that the defendant was negligent. It would be just as logical to reach the conclusion that .the plaintiff was negligent. For the plaintiff to be in a position to complain he must show a conflict with his issues. A finding that neither was negligent, on its face conflicts with a finding that the plaintiff was negligent, or that the defendant was negligent. But a finding that either was negligent does not mean that the" plaintiff was negligent or that the defendant was negligent. It requires a guess as to which one of two persons was negligent. In the former instance it is not left to surmise. In Blanton V. E. L. Transport Co., 146 Tex. 377, 207 S.W.2d 368 , a finding that the collision was unavoidable, and hence that neither plaintiff nor defendant was negligent, left room for a finding on the face of the verdict as to primary and contributory negligence issues that this was not so, and that one of them was negligent. This, one does not have to guess about. We are called 'on here to: do more than look at the conflicts on the face of the verdict. We are called on to exclude a possibility and take '"another"• one "which ‘is- nó more probable than the other. In other words, we are called on to create a conflict by surmise. I do not believe the doctrine should be pressed to this point. Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869 , like the instant case, was one in which both primary and contributory negligeifce issues were answered negatively. In such a case, it became immaterial how the unavoidable accident issue was answered. The Supreme Court in the Blanton case discussed this authority and approved it. Plaintiff has failed to- show any conflict with his issues apparent on the face of the verdict.
Third: There is still another reason I believe the judgment -should not be reversed even though there are conflicting findings. When a case is submitted on special issues, a conflict between a special finding and a general verdict should be controlled by the specific. Had the court submitted, without breaking the negligence into its specific parts, the single plaintiff's issue: Do you find from a preponderance of the evidence that the defendant was negligent? it would have been objectionable because it would be a general charge. . Yet, in that same special issue charge, by some slight of hand, it has become quite all right to lump together in a -single issue a question inquiring not only abo-ut negligence but also proximate cause, and not only as they relate to plaintiff, but also, -the defendant. After litigating about the granulated (1) negligence of the defendant, and (2) of the plaintiff; the (3) proximate cause of the defendant, and (4) of the plaintiff, as has been suggested by one writer, the jury is cross-examined as to all of them by submitting in a single issue an inquiry as to unavoidable accident. Though clothed in the vestments of a special issue, - unavoidable accident is a general charge, if we are to apply the rules equally. Putting a saddle on a duck does not make it a horse.
Unavoidable accident, as an issue, is proper- only as a suggestion to the jury that they are not compelled to find one of the ’partiés at fault. The Supreme Court has said so. Wheeler v. Glazer, 137 Tex. 341 , 153 S.W.2d 449 , 140 A.L.R. 1301 . *943 Either this doctrine is correct or the doctrine which entitles a party to use it as a matter of right to raise a conflict is correct. The right to raise a conflict is something more than advice to the jury. It gives controlling importance to the general over the specific.
Because we have failed to apply the same rules to the general charge of unavoidable accident that we apply in the case of a special issue, we are now faced with the paradox of having a rule which works only one way when we come to the matter of conflicts.
Once all the possible situations have been decided, it is believed that the practicing attorney will need a table similar to a table of logarithms, in order to determine what the jury meant. Conflicting decisions pertaining to conflicting answers is the inevitable result unless the unavoidable accident issue is limited to the use that our Supreme Court has expressly assigned to it. To escape the path we are following, it is believed that we must recognize the unavoidable accident issue for exactly what it is- — a suggestion. Intellectual honesty requires us to treat it as a general issue. Treated in this simple manner, the specific controls the general. Sproles v. Rosen, 126 Tex. 51 , 84 S.W.2d 1001 ; Harbin v. City of Beaumont, Tex.Civ.App., 146 S.W.2d 297 ; Leonard v. Young, Tex.Civ.App., 186 S.W.2d 81 ; New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620 ; Howard v. Howard, Tex.Civ.App., 102 S.W.2d 473 ; Cuniff v. Bernard Corp., Tex.Civ.App., 94 S.W.2d 577 ; Bragg v. Hughes, Tex.Civ.App., 53 S.W.2d 151 ; Peeler v. Smith, Tex.Civ.App., 18 S.W.2d 938 ; St. Louis S. W. Ry. Co. of Texas v. Miller & White, Tex.Civ.App., 176 S.W. 830 ; 53 Am.Jur., Trial, § 1140; 64 C.J., Trial, § 965 ; 41 Tex.Jur., Trial, § 360.