The opinion
NORVELL, Justice
dissenting.
As it seems necessary to set out certain issues with the jury’s answers thereto, I shall for clarity use the trial court’s designation of the parties. W. C. Smith, the plaintiff below and appellant here, filed a motion for a mistrial on the ground that the jury’s findings were conflicting. In my opinion the trial judge erred in overruling this motion and appellant’s point which so asserts should be sustained.
The jury in this case made the following special findings (conditionally submitted and subsidiary issues are omitted) :
“Special issue No. 1
“Do you find from a preponderance of the evidence that J. S. Morgan (defendant), at the time and. on the occasion in question, failed to keep a proper lookout?
“Answer ‘No’ * * *
. “Special issue No. 3
“Do you find from a preponderance of the evidence that J. S. Morgan (defendant), at the time and on the occasion in question, was driving said automobile while intoxicated and while under the influence of intoxicating liquor ?
“Answer ‘No’ * * *
“Special issue No. 6
“Do you find from a preponderance of the evidence that the failure of J. S. Morgan (defendant) to turn the automobile to the right immediately before the collision was negligence?-
“Answer ‘No’ * * ⅜
“Special issue No. 9
“Do you find from a preponderance of the evidence that as he approached the place of collision, the plaintiff (W. C. Smith) failed to give a plainly visible or audible’ signal indicating his intention to make a left turn?
“Answer ‘No’ * * *
“Special issue No. 11
“Do you find .from a preponderance o'f the evidence that as he approached the place of collision, the plaintiff (W. C. Smith) failed to discover the presence of the defendant’s automobile?'
“Answer ‘No’ * * *
“Special issue No. 14
■“Do you find from a preponderance of the evidence that immediately prior to' the collision in question the plaintiff , (W. C.' Smith) failed to maintain a proper.lookout?
“Answer ‘No’ * * *
*944 “Special issue No. 16
“Do you find from a preponderance of the evidence that the plaintiff (W. C. Smith), as he approached the place of collision, failed to have his car under such control as a person of drdinary prudence would have had, under the same or similar circumstances.
“Answer ‘No’ * * *
“Special issue No. 18
“Do you find from a preponderance of the evidence that the collision in question was not an unavoidable accident?
“Answer ‘It was not an unavoidable accident’.”
Unavoidable accident was defined as “an accident which happens without negligence on the part of either party.” This definition includes the element of causal connection, although not stated in the usual “proximate cause” form.
Necessarily, the jury, by finding from a preponderance of the evidence that the collision did not happen without negligence on the part of either party, found that the collision did happen with negligence on the part of the defendant or the plaintiff or both of them. This result is arrived at by eliminating the double negative comprised of the words, “not” and “without”.
While some of the issues submitted may have been evidentiary rather than ultimate in character, it can not be gainsaid that the jury found by its verdict that:
1. It was not proved, by a preponderance of the evidence that the plaintiff was negligent.
2. It was not proved by a preponderance of the evidence that the defendant was negligent.
3. It was proved by a preponderance of the evidence that the collision was not an unavoidable accident, that is, as above pointed out, it was proved by a preponderance of the evidence that the collision occurred by reason of the negligence of the plaintiff, or the defendant, or both of them.
The inconsistency upon the face of the verdict is obvious, and no argument is necessary to demonstrate this fact.
It is, however, suggested that the judgment based upon this inconsistent and conflicting verdict may be saved by indulging a presumption that the plaintiff or the defendant or both of them were guilty of some act of negligence not submitted to the jury by the trial court. In this particular case such presumption would have to be boldly constructed out of thin air, as there is nothing in the statement of facts which would support a finding that the plaintiff or the defendant, or both of them were negligent in some particular way not inquired about by the trial court. The statement of facts apparently does not contain all the evidence adduced upon the trial below. An abbreviated statement of facts is permitted by the Rules of Civil Procedure, Rules 377, 377-sl and 378, and I do not believe appellant was required to bring up all the testimony to overturn the suggested presumption. In my opinion, such presumption is wholly unauthorized and without precedent in a special issue case.
When special findings are desired, Rule 277, T.R.C.P., requires the judge in a jury case to submit the cause “upon special issues raised by the written pleadings and the evidence in the case”. It would therefore seem that we should presume that the trial judge performed his duty and folio-wed the stated rule by submitting all the issues of negligence properly raised, and that the evidence would have supported either affirmative or negative findings upon said issues. The record does not indicate that either party waived a jury determination of any disputed question of fact, and it seems to me that there is no basis for assuming that the case was not completely covered by the special issues submitted to the jury.
Perhaps a more serious matter is presented by the peculiar nature of the defense of unavoidable accident as used in •our special issue practice. This defense is somewhat of an anomaly and does not readily fit into usual classifications, nor is it always subject to general rules. It is a rebuttal defense rather than a true affirmative defense, such as contributory negli *945 gence. By the defense of unavoidable accident, it is asserted that the allegations of the petition are not true, in that the injury was not caused by defendant’s negligence as alleged in the petition. Galveston, Harrisburg & San Antonio Ry. Co. v. Washington, 94 Tex. 510 , 63 S.W. 534 ; Horton & Horton v. House, Tex.Com.App., 29 S.W.2d 984 . While an answer favorable to the defendant upon the unavoidable accident issue, standing alone, will support a judgment for the defendant, the same is not true as to the plaintiff, and for this reason it is urged that despite an admitted conflict involving the issue, a plaintiff is not entitled to a new trial. It seems to me that this argument simply asserts that the unavoidable accident issue is available to the defendant to create a conflict and secure a new trial, but is not available to the plaintiff for such purposes. When the plaintiff is successful upon 'his specific charges of negligence against the defendant but the defendant is successful upon his rebuttal defense of unavoidable accident, we have jury findings that:
1. It is proved by a preponderance of the evidence that defendant was negligent.
2. It is not proved by a preponderance of the evidence that the collision is not an unavoidable accident.
Here there is a conflict and a new trial must be granted, for, as stated by the Commission of Appeals in Colorado & S. Ry. Co. v. Rowe, 238 S.W. 908, 910 , “If a finding that the defendant was negligent was a negative finding that there was no accident, likewise, a finding that death resulted from accident would have been a negative finding that there was no negligence.”
In other words, when the evidence raises the accident issue, the plaintiff in order to prevail must (1) prove his alleged specific acts of negligence, and (2) successfully negative the theory of injury resulting from an unavoidable accident! Success on the first requirement may be offset by failure on the second requirement and a new trial ordered because of conflict in findings.
The only difference between the example given of conflict inuring to the benefit of the defendant and the conflict disclosed in the present record is that here the effect of the unavoidable accident finding is to establish by a preponderance of the evidence that the collision in question was caused by the negligence of the defendant or the plaintiff or both of them. It is, of course, possible that the jury may have believed that the 'collision was not the result of an unavoidable accident because the plaintiff was negligent. This would conflict with the jury’s findings that plaintiff was not negligent, but would perhaps be compatible with the theory that defendant was not negligent. I do not believe we should adopt this tortuous argument embodying possibilities and speculation in order to save the judgment. We know that the .jury has made a mistake and returned a conflicting verdict, and we should not attempt to save the judgment resulting from that mistake upon the surmise that the conflict relates to the plaintiff’s conduct rather than to that of the defendant. It is my opinion that when material, a conflict involving the unavoidable accident issue should be as available to the plaintiff as to the defendant for the purpose of obtaining a new trial. I see no reasonable nor practicable basis for making fish of one and fowl of the other. I believe the Galveston Court of Civil Appeals directly and correctly passed upon the question here involved in Bishkin v. Campbell, 107 S.W.2d 919 . I would follow that decision and reverse the judgment of the trial court. I dissent from the order of affirmance.