The opinion
*638 ON PETITION FOE REHEARING.
February 8, 1929.
On a former day of tbe present term an opinion was filed and a judgment entered affirming* the judgment of the trial court in each of the two cases which had been tried together by consent in the Second Circuit Court of Davidson county and brought to this court in one transcript and docketed here under the above style.
The judgments thus affirmed were adverse to the Louisville & Nashville Railroad Company, the defendant below, and the railroad company has filed a petition for a rehearing upon the rulings of this court with respect to certain of the assignments of error specified in the petition.
The 23rd and 24th assignments of error purported to be based upon the action of the trial court in refusing to give in charge to the jury special request No. 23 and special request No. 24, respectively, submitted by the defendant below. These assignments were overruled, for the reason that the record did not show that any requests numbered 23 or 24, or that any requests such as those copied into the 23rd and 24th assignments of'error were submitted to the trial court; that such requests appeared nowhere in the record except in the motion for a new trial, which was merely a pleading and could not be looked to as evidence of what occurred on the trial.
It now appears from the petition to rehear, supported by a certificate of the clerk of tlie trial court and an affidavit of counsel, that the aforesaid special requests of defendant, numbered 23 and 24, respectively, were included in the bill of exceptions in the circuit court, but were inadvertently omitted by the clerk of that court in making up the transcript of the record for this court; that this omission was discovered by counsel for petitioner before the hearing in this court and before the assignments of error were filed; that thereupon the attorneys for all the. parties entered into a written agreement reciting, in a preamble thereto, the facts above stated, and stipulating as follows:
“NOW, THEREFORE, it is hereby stipulated and agreed that said special requests Nos. 23 and 24,- having been erroneously omitted as aforesaid, but being correctly set out in defendant’s motion for a new trial as appears in the transcript, Volume I, pages 48-49, that they are hereby incorporated by reference in the transcript of the record, and may be referred to as appearing at page 683 in Volume II of the record and this is to be taken and treated in the same way as if a diminution of the record had been suggested and duly certified by the Clerk of the Circuit Court of Davidson County.”
*639 It further appears, from the affidavit of the clerk of this court exhibited with the petition to rehear, that the aforesaid written stipulation of counsel was marked filed by the clerk as a part of the record in the cause and was placed with the transcript and sent to the court along- with the balance of the record after the argument and hearing of the case.
A copy of the stipulation is set out in the petition to rehear, and in their reply to the petition the attorneys for defendants in error admit the facts above stated and offer no objection to the treatment of the record as if the aforesaid omitted requests had been supplied by a duly certified transcript thereof on suggestion of a diminution of the record.
The aforesaid written stipulation of counsel was not found, and its existence was unknown to the court when our former opinion was prepared and filed and judgment entered, although the whole record in the hands of the court was carefully examined. Presumably it was, by accident, mislaid and lost after it was placed with the transcript by the clerk.
The petition to rehear the case upon the questions raised by the assignments of error numbered 23 and 24 is granted — treating said special requests, numbered 23 and 24, as properly incorporated in the bill of exceptions and as having been seasonably tendered to and refused by the trial judge. Russell v. Russell, 3 Tenn. App. R., 232, 236.
(a) The 23rd assignment is that the court erred in refusing to give in charge to the jury special request No. 23 submitted by the defendant, which request was as follows:
“I further charge you, gentlemen, that the Act of 1917 of the General Assembly of Tennessee requires persons operating automobiles to 'come to a full stop before crossing railroad tracks at grade at a distance of not less than ten feet nor more than fifty feet from the nearest rail of such railroad track or tracks. I further charge you that it was the duty of the deceased husbands of the plaintiffs to comply with this law and if they failed so to do such failure constituted gross negligence.
“I charge you that if at any point or points within this distance of 10 or 50 feet the deceased men could, by stopping and looking, or listening have discovered the approach of the train in time to have prevented the collision, it was their duty to so do and if they failed so to do, this would constitute such negligence as to bar any recovery for any injuries they may have sustained, and if you find these to be the facts from a preponderance your verdict should be against the plaintiff and in favor of the defendant railroad company.”
*640 The instruction thus requested was, in substance and effect, that if the deceased men failed to comply with the requirements of the Act of 1917, chapter 36, the verdict of the jury should be against the plaintiffs' and in favor of the defendant railroad company.
As applied to the common-law count of the declaration, such an instruction would have been directly contrary to the terms of section 3 of the Act, wherein it is provided, “That none of the provisions of this Act shall be construed as abridging or in any way affecting the common-law right of recovery of litigants in damage suits that may be pending or hereafter brought against any railroad company, or other common carrier.”
In Crawford v. N., C. & St. L. Railway, 153 Tenn., 642, 646 ( 284 S. W., 892 ), it was held that the Legislature intended to confine the application of the Act (in common-law actions) “to its penal force, excluding the inference of negligence per se.”
The requested instruction (No. 23) would likewise have been erroneous if applied to the statutory count of the declaration. In Tennessee Central Railway Co. v. Page, 153 Tenn., 84, 95 ( 282 S. W., 376 ), the court said:
“The violation of the Act of 1917 cannot be set up as altogether excusing the railroad of the imperative duty imposed upon it to observe statutes intended to protect life and property. ’ ’
The 23rd assignment of error is overruled.
(b) The 24th assignment is that the court erred in refusing to give in charge to the jury special request No. ,24 submitted by the defendant, which request was as follows:
“I further charge you that if you find for the plaintiffs you should and must say whether you so find on both counts of the declaration, or if on only one count, which count. If you find for defendant on either or both counts you will so report in your verdict. ’ ’
Learned counsel for petitioner cite no authority supporting their contention that it would have been proper for the trial court to instruct the jury that, in their verdict, they must state their finding on each count of the. declaration, in the manner set forth in special request No. 24, supra.
In 2'Thompson on Trials (2 Ed.), sec. 2137, it is said:
“In civil cases, unless restrained by statute, as in some States, where either party may require the jury to find special issues or answer special interrogatories, it is the privilege of the jury to decline finding any other than a general verdict.”
In the instant case, the trial judge charged the jury on this subject as follows: ,
*641 “You must report a separate verdict in each ease, and you may state under -which count you find, or upon both counts, returning a general verdict.”
The charge thus given to the jury is in accord with the rule stated in Thompson on Trials, as above quoted, and is in accord with the long-established and, so far as we know, uniform practice in this State.
In Tennessee, “the privilege of the jury to decline finding any bther than a general verdict” is not “restrained by statute;” but, to the contrary, our statutes seem to impliedly recognize this privilege of the jury.
It is provided by sec. 2969 of the Code (Shannon 4694) that, “if any counts in a declaration are good, a verdict for entire damages shall be applied to such good counts'.”
This statute was applied in the case of Tennessee Central Railway Co. v. Umenstetter, 155 Tenn., 935 , 291 S. W., 452 (a railroad-crossing collision case where there- was a common-law count and a statutory count), and a general verdict was sustained, although there was no proof to sustain the common-law count and the trial judge had submitted both counts to the jury upon a charge appropriate to the facts averred in each count.
We recognize the force of much that counsel for petitioner say in their petition and brief concerning the desirability of the practice for which they contend through their 24th assignment of error, but “the privilege of the jury to decline finding any other than a general verdict,” in the situation here presented, is, in our opinion, too firmly imbedded in the practice in this State to be disregarded by the trial courts. Hence, the trial judge did not err in refusing defendant’s special request No. 24, and the 24th assignment of error is overruled.-
In this connection, it may be said that there would seem to be room for the contention that the defendant below waived its right to demand- a finding of the jury on each count separately, by its failure to object to the form of the verdict after it was rendered by the jury and before judgment was’entered. This suggestion is made in view of section 4593, Shan. Code, which provides that “any defect in entering a verdict where there are different issues, or the verdict is not responsive to the issues, shall be objected to before judgment is entered, or"the objection will be considered as waived.”
However, we do not rest our action with respect to the 24th assignment of error upon the Code section last quoted, but upon the grounds previously stated.
Petitioner also asks us to rehear, review and reverse our rulings upon the 5th, 21st and 32nd assignments of error, and on certain'questions arising under the 1st and 2nd assignments of error.
*642 We have' attentively considered the reasons stated in the petition and brief for the insistence of counsel that our former opinion is erroneous in the respects indicated, but, after a re-examination of the questions involved, we are satisfied with our former conclusions and the reasons therefor stated in our opinion heretofore filed. A further discussion of these questions might possibly be an elaboration of the former statement of our views, but, in substance, merely a repetition, and therefore unnecessary.
It results that with respect to all except the 23rd and 24th assignments of error, the petition to rehear is denied and dismissed.
The 23rd and 24th assignments of error are overruled and the judgment of this court heretofore entered is reaffirmed.
Crownover and DeWitt, JJ., concur.