This suit was filed in justice court, precinct No. 1, Orange county, by appellee аgainst appellant, for damages, on allegations that appellаnt, while repairing the water pipes in •appellee’s house, negligently left open the water faucets and flooded appellee’s premises with water. In justice court judgment was for appellant, but upon appeal to county •court, on trial to a jury, judgment was rendered in favor of appellee for $125.58. The following points were regularly assigned:
The issue of negligence was submitted by question No. 1, as follows: “Do you find from the preponderance of the evidence that the Defendant was negligent in turning on the water on Plaintiffs’ рremises?”
Appellee pleaded negligence as follows:
“(a) Appellant’s failure to close the faucets in appеllee’s house before turning the water into appellee’s pipes ;
“(b) In turning thе water on in appellee’s house without the knowledge of the apрellee;
“(c) In turning on the water in appellee’s house without investigating to sеe if the faucets in the house were open.”
This charge was error, as against appellant’s objections that the issues of negligence should havе been submitted as pleaded. Fox v. Dallas Hotel Co.,
In tort actions, proximаte cause is generally an affirmative issue to be pleaded and prоven by the plaintiff, and he can have judgment only upon a verdict thereon in his fаvor. In this case proximate cause was an issue of fact. At least appellee docs not contend to the contrary. The trial court, over appellant’s objections, refused to submit the issue of proximate cаuse. This omission constituted reversible error. Dallas Hotel Co. v. Davison (Tex. Com. Aрp.)
The court gave the .definition of negligеnce which the trial court gave in Railway Co. v. Hannig,
Issue No. 24 was as follows:
“‘Gеntlemen of The Jury: t)o you find from a preponderance of the evidence that plaintiff’s injuries and damages, if any, were not caused by a new and indeрendent cause?
“Answer Yes or No as you find the facts to ■be.”' .
To this issue the jury answered “No.” Appellant makes two cоntentions under the jury’s answer to this issue: First, it was an affirmative finding that appellee’s injuries were the result of a new independent cause;second, it was an affirmative finding that ap-pellee had not met the burden of proof that his injuries werе the result of the negligence charged. We think the argument of the court in Texas Interurban Co. v. Hughes (Tex. Civ. App.)
Issue No. 25 was as follows:
“Gentlemen of The Jury: Do you find from a preponderance of the evidence that plaintiff’s injuries and damages, if any, were not the rеsult of an unavoidable accident?
“Answer Yes or No, as you find the facts to be.”
To this question the jury answered “No.” Where unаvoidable accident is an issue, the burden is upon the plaintiff to show, by the prеponderance of the evidence, that his damages did not result from the unаvoidable accident. Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Com. App.)
For the reasons stated, the judgment of the lower court is reversed, and the cause remanded for a new trial.