erally, and then set out the specific act of uncoupling the cars without turning the angle cocks and confining the air, or vice versa, a rule of pleading would have limited his right of recovery to the specific act. Ry. Co. v. De Ham, 93 Tex. 74, 53 S. W. 375. And he would, in such event, have been deprived of the benefit of the res ipsa loquitur doctrine otherwise accorded him. Ry. Co. v. Brymer, 124 S. W. 1009. Clearly plaintiff was entitled to recover upon either phase of the evidence, as it might develop, and, in order to avail himself of this right and meet the rule of pleading indicated, it was necessary that he set up his cause of action in two separate counts.

That the cause of action was the same in both counts is susceptible of ready and easy demonstration. In the third count the sudden application of the brakes producing the sudden and abrupt stop of car is alleged to have resulted from negligence "either in the operation or handling or in the equipment" of the train. In the first count it is alleged to have resulted from negligence of an employé in uncoupling the "cars of said train without turning the angle cocks and confining the air." Each count contains the same alternative allegation of negligence with respect to equipment.

of action may rest as a base, but necessary to be set up in two counts, in view of the rule of pleading noted, in order that plaintiff might avail himself of the right of recovery upon either phase of the evidence, as it might develop. That he is thus entitled to present his cause of action is quite clear. Townes on Pleading (2d Ed.) pp. 477, 478.

are

[2] These preliminary observations made to the end that a proper understanding and disposition may be made of a question confronting us upon the threshold of this case, relative to the sufficiency and legality of the verdict rendered by the jury which reads:

"We, the jury, find plaintiff, Morris Geary, entitled to recover under his first and third counts, and assess his damages at $20,000.00 (twenty thousand dollars)."

The verdict is to be construed in connection with the instructions. Garrett v. Robinson, 93 Tex. 413, 55 S. W. 564. Applying this rule, it is apparent some of the jurors based their finding upon the specific act of negligence alleged in the first count, whereas other jurors rejected this theory, and, under the res ipsa loquitur rule, found that the sudden ap plication of the brakes, producing the sudden and abrupt stop of the car, was due to some other act of negligence in the operation and handling of the train, or in respect to equipment.

In effect, it was a general verdict in plaintiff's favor that the sudden application of the brakes, causing the car to suddenly and abruptly stop, was due to defendant's negligence, but with a diversity of opinion as to the particular causative agency.

Now, would any one assert that the act of uncoupling the cars without turning the angle cocks and confining the air is not an act of "operation or handling" and embraced within the general allegation of the third count? The allegations relate to one and the same matter, one being specific and the other general. Thus it must be conceded the specific The basic idea upon which rests the variallegation in the first count is embraced with- ous propositions subjoined to appellant's first in the general allegation contained in the four assignments questioning the legality third, and that they state one and the same of the verdict is that unanimity of opinion cause of action. Distinct or inconsistent was necessary, not only of the essential ulticauses of action may not properly be set up mate fact of negligence in the sudden stop in the same count. Townes on Pleading (2d of the car, but of the particular negligent Ed.) pp. 477, 478. If in one count plaintiff had act causing it, as well. In our opinion, unamade his general allegation of negligence and nimity is necessary only of the essential ultihis allegation of the specific act in the very mate fact of negligence whereby the car was same language which he used in his separate brought to a sudden and abrupt stop. It is counts, it would hardly be contended that it wholly immaterial that this collective unanwas improper for him to do so, or that distinct imous finding may in part have rested upon or inconsistent causes of action were set up; the belief of certain jurors that the causative and the circumstance that two counts are agency was the act of an employé in unemployed to make both grounds available does coupling the cars without turning the angle not change the identity of the cause of action. cocks and confining the air and the belief In almost every personal injury case more of others that it was some other negligent than one act of negligence is alleged in a sin- act in respect to operation or equipment. It gle count, but the various specifications of would seem, if the jury unanimously deterthe negligence relied upon are not regarded mined the car came to a sudden and abrupt as separate and distinct causes of action. stop through the negligent act of the defendThey may be separate and distinct integral | ant, this being the basic fact upon which the parts of a complete whole, but not, of them-action rests, this should be all that is necselves alone, a complete cause of action. So essary, and unanimity should not be essential the allegation of the specific act of negligence in the first count of plaintiff's petition and the general one in the third are to be regarded as relating to one and the same cause of action, upon either of which a complete cause

as to the varying details and phases of the evidence offered to support the same. A simple illustration will perhaps illustrate the absurd consequence to which a contrary hold would logically and inevitably lead: A.

brings suit against a railway company upon | so as to meet the possible varying phases of a personal injury claim, his injury having the evidence, a general verdict is proper. been received in the derailment of a train Lancaster v. Ins. Co., 92 Mo. 460, 5 S. W. 23, upon which he was a passenger. It was al- 1 Am. St. Rep. 739; Leu v. St. Louis Transit leged the derailment was due to the com- Co., 110 Mo. App. 458, 85 S. W. 137; Parker pany's negligence: (a) In running at an ex- v. Ry. Co., 84 Vt. 329, 79 Atl. 865; Murray cessive speed; (b) in a defective track and v. Ins. Co., 96 N. Y. 614, 48 Am. Rep. 658. roadbed. Now, could it be contended that the The Parker Case, supra, was a personal rendition of a general verdict in plaintiff's injury case by a passenger. In this case it favor in such a case would be improper? was said: Certainly not. Yet, under such a verdict, the jurors might have been divided in their view as to the causative agency. Now, if unanimity of decision as to these details be essential, it of necessity follows that a general verdict would not be proper and special findings upon the same be required, to the end that defendant's rights be adequately protected and a judgment be not rendered against it upon a verdict lacking in essential unanimity. We apprehend it would not be contended that a general verdict for plaintiff in such a case is improper or that de fendant has any right to additional findings. Since it would have no right to require findings upon such details, it follows they are immaterial issues and unanimity of opinion in respect thereto nonessential.

The instant case is a perfect parallel to the one supposed. The uncoupling of the cars without turning the angle cocks and con

fining the air, as shown, was improper operation or handling of the train and embraced within the general allegation of negligence in the third count. If the court below, as it

might have done, under the third count, had given a general instruction to find in plaintiff's favor, if the jury found the sudden application of brakes and stop of car was proximately due to the negligence of defendant in operation or handling of train, who would suppose a verdict in plaintiff's favor, returned under such an instruction, could be invalidated by showing that, while concurring in the finding as to negligent operation, some of the jury had thought the negligent causative act was the failure to turn angle cocks and others had believed it was some other operative act?

Since unanimity of opinion, as respects the causative negligent agency producing the sudden and abrupt stop of the car, is regarded as nonessential, the verdict is then but a general one in plaintiff's favor, and, as such, possesses the requisite unanimity.

That a general verdict for plaintiff is proper upon a petition containing several counts, but embracing only one cause of action, see Ency. Pl. & Pr. 850-852, and note at 851.

"At the close of all the evidence the defendant moved for a separate verdict on each count, because the evidence failed to establish the allegations of each; because the evidence did not establish negligence on the part of the defendant in any of the respects complained plaintiff was not entitled to recover. This moof in any; and because on all the evidence the tion was properly overruled. Such a practice does not obtain in this state, and ought not to obtain. It is to be noticed that the counts are not based upon separate and distinct causes of action, but upon the same cause of action, though varied in statement to meet the possible exigencies of the case that the evidence might present, and so the issue joined on each count is not a separate and distinct issue, but the same issue that is joined on the other counts. Therefore the practice asked for, if adopted, might result, and often would result, in a verdict each way on a single, indivisible issue and cause of action, whereas, there should be but one verdict, whichever way it is, as there is but one issue."

Murray v. Ins. Co., supra, was an action upon insurance policy defended upon the ground that deceased died in or in conseIt appeared quence of a violation of law. the insured died because of a violation of the jury agreed on the ultimate fact that law, but differed as to the minor facts inducclusion from one minor fact or cause, some ing that conclusion; some reaching the confrom another. It was held:

"The point to be determined by the jury was whether the insured died in, or in consequence of, a violation of law. The jury found for the defendant upon this issue, and as was said by The jury might well have united in that conBrown, J., in his very satisfactory opinion: clusion, although some should think the shooting accidental, and others intentional, some that it was done in self-defense, others that it was done in the heat of passion, some that the assured had abandoned the combat, others that he had turned to renew the assault upon Berdell with his pistol.' It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and a part upon the other."

In case of verdict upon special issues, it is of course true that the defendant is entitled to have the jury pass upon every contested fact material to the legal conclusion in plaintiff's favor; that is, on all the ultiNothing could more perfectly demonstrate, mate facts upon which his right to recover on the question of unanimity, the nonessen- depends in law. To refuse the submission tial character of the detail as to the partic- of a material fact of that character must ular causative agency of the sudden and necessarily be error. The immateriality of a abrupt stop of car than the rule, well estab- finding as to the particular causative agency lished, in a negligence case, that if the of the sudden application of brakes and stop counts state the same right of action, vary- of car is shown by Ry. Co. v. Olis, 192 III. ing only as to the allegations of negligence, | 514, 61 N. E. 459; Chicago, etc., v. Nelson,

197 III. 334, 64 N. E. 369; Morbey v. Ry. Co., | the counts set up the same cause of action, 116 Iowa, 84, 89 N. W. 105; Peer v. Ryan, 54 and not separate, distinct, or inconsistent Mich. 224, 19 N. W. 961; Ry. Co. v. Scheffner, grounds, a general verdict is proper, for the 209 Ill. 9, 70 N. E. 619; Montayne v. North- manifest reason that concurrence of the jury ern, etc., 127 Wis. 22, 105 N. W. 1043. is not required as to minor facts or details of difference. The authorities all seem to recognize the distinction. Lancaster v. Ins. Co., supra; Parker v. Ry. Co., supra; Leu v. St. Louis Transit Co., supra; Illinois, etc., v. Linstroth, etc., 112 Fed. 737, 50 C. C. A. 504; Ranney v. Bader, 48 Mo. 539; Brady v. Connelly, 52 Mo. 19; Long v. Armsby Co., 43 Mo. App. 253.

Railway Co. v. Olis, supra, was an action against a street railway for personal injuries, and a special interrogatory as to whether the defendant's motorman was ringing his gong on approaching the crossing was properly refused, as calling for a finding upon a mere evidentiary and noncontrolling question of fact.

In Chicago, etc., v. Nelson, supra, error was assigned to the refusal to submit this question:

"Was the defendant guilty of negligence causing the injury in this case, and, if so, in what did such negligence consist?"

Held:

"This special interrogatory was properly refused, for it was not restricted to those ultimate facts upon which the rights of the parties directly depended, but sought an opinion on probative facts."

In Morbey v. C. & N. W. Ry. Co., 116 Iowa, 84, 89 N. W. 105, the question, "If you find for the plaintiff, state upon what neg-| ligence you base such finding, and what employé or employés committed it," was properly refused, because it could have been answered without touching any issue in the

case.

In Peer v. Ryan, 54 Mich. 224, 19 N. W. 961, it was held that several counts requiring a jury in an action of negligence to specify what defendant did or omitted were erroneous, because, if the jury was satisfied that he was wanting in care, plaintiff was entitled to their general verdict.

In Montayne v. Northern Electrical Mfg. Co., 127 Wis. 22, 105 N. W. 1043, in an action for injuries received in operating a machine, the refusal to submit questions covering different phases of the evidence concerning the nature of the defects, if the machine was found defective in construction, was proper, because they required the jury, in answering the general questions respecting the alleged negligence of defendant, to state the specific grounds of their findings.

We must therefore conclude the verdict in this case sufficient as a general one, and a finding as to the particular causative agency of the sudden stop of car nonessential, and not a proper issue to submit. If a unanimous finding in respect thereto had been made it would have been mere surplusage. In cases where a general verdict may properly be returned and is so submitted, the practice is not to be commended of a submission in such a manner as to require inferential findings upon nonessential and immaterial details. Juries find sufficient difficulty in concurring unanimously upon controlling issues, and no more should be required of them. In the case at bar they should have been permitted to return a general verdict, and it was immaterial upon which count it was based. Further or more specific findings should not have been required.

[3] The fifth assignment complains of the sixth paragraph of the charge. The first two propositions thereunder confuse the plea of contributory negligence with the negligence of defendant. This paragraph of the charge was an affirmative presentation and submission of the issue of negligence vel non upon defendant's part with respect to operation or equipment, independent of pulling pin without turning angle cocks.

Plaintiff's position upon the car and the question of contributory negligence on his part with respect thereto are separate and distinct from an inference and finding of negligence upon part of defendant in relation to the separation of cars producing the sudden application of air and stop of car. The want of causal connection between the issue of contributory negligence and the inference of negligence upon defendant's part with respect to operation or equipment is so patent that further comment in regard thereto would be a matter of supererogation. Nevertheless it may be noted the issue of contributory negligence is submitted in the tenth paragraph in a manner to which no exception is taken.

Of the adversely cited cases, the only ones of any apparent pertinency are Biggs v. Barry, Fed. Cas. No. 1,402; Schofield v. Miltmore, 74 Wis. 194, 42 N. W. 214; Clark's Adm'x v. Ky. Co., 36 Mo. 202; Parrott v. Thacher, 26 Mass. [9 Pick.] 426. All of these are plainly referable to the rule of practice that a general verdict in plaintiff's favor should not be allowed upon a petition setting up two distinct or inconsistent grounds or causes of action. 22 Ency. Pl. & Pr. 849, 850, and cases cited. Lancaster v. Ins. Co., [4] The additional propositions under the supra. The distinction is plain and manifest, fifth assignment will be considered in confor there must be unanimity as to any one nection with the sixth and seventh assigncomplete cause of action before plaintiff is ments, since they all relate to the same alentitled to a verdict, and a general verdict leged ground of error, viz., that the court in such a case might be rendered with this erred in submitting the doctrine of res ipsa essential concurrence lacking. But, when loquitur pleaded in the third count, the

contention being that, independent of the act of the employé in pulling the coupling pin without turning angle cocks, there was no evidence either of improper operation or equipment of cars to warrant an inference of negligence.

ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

Of the adversely cited cases none are in point. The essentials of res ipsa were not present in any of them, and they may be readily distinguished by elementary law.

[5] To the claim of error in the submission of the issue noted under the third count it may be further and conclusively answered that there was affirmative evidence warranting an inference of negligence based on either improper operation or improper equip

ment.

At the time of the accident plaintiff was in the employ of defendant, serving as a section foreman, and, in the ordinary discharge of his duties, was riding on a gravel train, running between eight and ten miles an hour. The train consisted of a string of flat cars which had just been unloaded of gravel. The engine was facing north, at the south end of the train, and with the caboose at the north end. The train was moving in a northThe plaintiff's witness J. E. Haskell, an erly direction. Plaintiff was standing upon expert of wide experience in train equipment, a flat car while the train was approaching testified to the effect that, under the circumRosslyn switch, where some of the cars stances of plaintiff's injury, the occurrence in were to be cut out and left. Upon approach- question was unusual, and that the coming ing the switch the car just north of the one apart of the cars, the uncoupling, if the train upon which plaintiff was riding separated was properly handled, could be produced by from the rest of the train, causing a separa- "nothing else in the world but a defective tion or bursting of the connecting air hose, coupler or a defective car, or something the the result of which was to apply the air as matter with that equipment; there would in case of emergency, producing a sudden be a defect." This witness explained that the and abrupt stop of the train, throwing plain- uncoupling of the cars would necessarily tiff northward and off the car. The engineer burst or part the air hose, if unseparated, testified he slowed his train with a service and instantly apply the brakes and produce (slight) application of air. When this applithe sudden and abrupt stop testified about by cation was made it appears the uncoupled plaintiff, and that this same result would be cars separated, causing a separation or burst-produced if the air hose was separated, but ing of the air hose, the result of which was the air had not been confined by turning the to apply instantly the air as in case of emerangle cock. gency and instantly stop the train.

To the claim of error in the submission of the issue it may be first answered that, independent of any affirmative evidence of improper operation or equipment, the circumstances attending the accident bring it clearly within the rule of res ipsa.

The train was under the management of defendant's servants, and the instant stop of a train is not an occurrence in the ordinary course of things, if those who have the control thereof use proper care in its operation and with respect to equipment. In such case, in the absence of any explanation by the defendant, it affords reasonable evidence that the instant stop was due to a want of ordinary care. ky. Co. v. Geary, 144 S. W. 1045; Ry. Co. v. Hawk, 30 Tex. Civ. App. 142, 69 S. W. 1037 (W. of E. Ref.); Ry. Co. v. Young, 45 Tex. Civ. App. 430, 100 S. W. 993; Washington v. Ry. Co., 90 Tex. 314, 38 S. W. 764; McCray v. Ry. Co., 89 Tex. 168, 34 S. W. 95; Ry. Co. v. Fales, 33 Tex. Civ. App. 457, 77 S. W. 234; Ry. Co. v. Wood (Civ. App.) 63 S. W. 164; 1 Shearman & Redfield on Negligence (6th Ed.) §§ 58, 58b, 59; Scott v. London, etc., 3 H. & C. 596.

Chief Justice Erle, in Scott v. London, etc., supra, the leading case, states the rule in language repeatedly approved by our courts, as follows:

"There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the

Haskell further testified:

"That if the cars in question had been lying at a switch track for from ten days to two weeks in the weather, uninspected, and were taken from there and put onto this train and put to work, the tendency that that exposure would have on them would be to make them defective; all such conditions as that have a tendency to deteriorate and to work bad with been proven by experience the world over that the brakes, to make them defective. It has by the cars standing still or idle on a switch track they go to the bad, or get in bad, as the boys say, quicker than everyday service. The packing leather dries out in the cylinders, and the triple valve becomes gummed and dry. The tendency is in the part lars, as I have stated, to render same defective, unsound, and in bad order."

The defendant witness and employé W. E. Wise, a railroad operative of experience, testified that when an engine is handled in the customary and usual way, and there is no defect in the appliances, the cars are not intended to uncouple without something being done to them, and they will not of themselves uncouple where the cars are handled in the usual and ordinary way, and when all the equipment is free of defects they will not uncouple then of themselves.

The defendant's witness and employé Ed. Looney, another railroad operative of experience, testified that an engineer could so handle his engine as to cause the train to part. He further testified:

"It is true that there are defects in the machinery connected with the car that will sometimes cause them to uncouple; if there are de

fects in the car, or it is exposed to the weather, it might cause it. Defects do cause cars to come uncoupled about their coupling apparatus. They are not intended to uncouple of themselves when they are made up, not that know of. If they were worked in the usual and customary way, as far as I know, they won't come uncoupled."

Morris Geary, the plaintiff, testified that the cars which uncoupled were, on the morning in question, gotten from the side track at Rosslyn, loaded, and had been there for two or three weeks or more, and during that time said cars were not under shed; they were exposed to the weather; his section house was at that siding, and he did not see anybody inspect the cars, and that there were no employés down there for inspection purposes as far as he knew; that it was not within the line of his duty to inspect the cars, and he had nothing to do with inspecting them. The witness further testified: "The usual position for a man riding on a car is to stand; it is to stand on a car of a work train. I said I was standing about the middle of the car, and was facing north. The stop on the occasion of my injury was made that quick (snaps fingers). said it stopped instantaneously, and as it did so, of course, I was thrown; I was thrown clear off; * * * thrown north. Before the time I was injured, I had been engaged in railroad service over 30 years. * * In my experience in the railroad service I had not, before the time I was injured, encountered an abrupt stop such as on the day I was hurt, not personally, not on a work train. I had ridden many times on trains similar to this; when I was roadmaster I rode every day; some days as much as from 140 to 200 miles a day."

*

I

The witness testified that as he lay on the ground after his fall he saw the cars were standing apart, uncoupled, and the air hose had burst in two; was pulled apart-clear apart.

The defendant's testimony was in conflict with Geary's as to how long the cars had been on the side track at Rosslyn, exposed to the weather, but its testimony conceded that the cars had been on said siding, exposed to the weather, for at least four days before the accident, uninspected.

* *

"When two cars are coupled together (meaning the airline coupling) and the engineer slows down, those cars will come apart; when those cars come apart, and if the hose does not come uncoupled, it (the air hose) will burst; it will tear the hose in two; either part or burst."

In addition to the above, there was direct evidence of improper handling, in that plaintiff, Geary, testified, in effect, that the brakeman, Savage, one of defendant's train operatives, immediately after he gave the slowdown signal, reached over where the coupling was and raised up as a man would in pulling the pin, but that he did not uncouple the air line or turn the angle cock so as to confine the air, and that then, almost instantly, the sudden and abrupt stop came. Savage was not called by the defendant to testify.

From defendant's printed book of rules, proven to be in force at the time, plaintiff give in evidence the following rules respecting duties of its train operatives:

* Must

use the

"Must inspect their brake apparatus carefully each trip, and report any repairs needed. They must keep pumps well packed, and drain main brake carefully, to avoid injury to passengers reservoirs regularly. or freight. They must not use the emergency application unless it is really necessary, and must be especially careful to apply moderately when train is moving slowly. *** See that there are no leaks in air pipes or connections, and that air-brake apparatus generally is in good working order. * * When the engine has been coupled to the train, and has been charged with an air pressure of 70 pounds the engineman shall, at a signal from the inspector or trainmen, make a full service application of not less than 25 pounds reduction, and keep brake applied until the entire train has been inspected and the signal to release given. He must not leave the station until it has been ascertained that all brakes are released, and he has been so informed by the inspector or trainmen. This test must be made at all terminals, and after each change in the make-up of the train. * * When the engine has been coupled, and gauge shows a suffiinspector making the test will request the encient pressure in train pipe, the trainman or gineman to apply the brakes, and will then go to each car and observe the pistons to see that the brake is set. * * * When the last car is reached, if the brakes are set properly, he will give a signal to the engineman to release the brakes, and the person making the test will then examine each car, see that the brake releases, and on arriving at the engine will report to the engineman the number of brakes in good order and working. If any brakes will not release, or have leaks or brokessary, they must be cut out by closing stopen rods, or other defects, which render it neccock in branch pipe and then bled, to insure that they will not stick. * In switching trains, the hose must not be pulled apart, but always be uncoupled by hand. ** In making up trains, examine couplings and signal discharge valves to see if tight."

*

Geary further testified that as the train approached Rosslyn the purpose of the train crew was to switch off there certain foreign cars, including the car he was riding, but not the caboose or the car between it and the one he was riding; that, to do this, the train crew adopted the method of cutting off the caboose and the car next to it, while the train was in motion, and letting them run down the main track of their own momentum, and then, after putting in the foreign cars on the siding, for the train to return, couple onto the caboose and other car, and There was no evidence by defendant that then proceed northward on its way; that, to the inspection or tests of the cars and equipthis end, the brakeman, Savage, standing on ment came up to the requirement of these the car next to him, gave a slow-down sig- rules, but the affirmative evidence of the ennal, and immediately after the accident hap-gineer, Lingo, and conductor, Brown, was to pened. the contrary. The inspection testified to by Geary, after testifying to the slow-down the inspector, Stringer, was made at Teague, signal as given by Savage, further testified: five days before the accident.

169 S.W.-14