Jones v. Gibson , 18 S.W.2d 744 ( 1929 )

The jury found that T. A. Jones, Jr., was driving the car at the time it struck the plaintiff, Grady Gibson, at the rate of 40 miles per hour; that the driving of the car at such time and place and at said rate of speed was negligence; that the said T. A. Jones, Jr., did not warn the plaintiff of the approach of the car by sounding the horn or Klaxen or any device; and that his failure to warn plaintiff in some such manner was negligence. The jury further found that defendants, Tom Jones and wife, might reasonably have anticipated an accident as a consequence of permitting their son, T. A. Jones, Jr., to use the automobile in question; that they, in permitting him to use the car at the time and place, were guilty of negligence. The jury further found that plaintiff was not guilty of contributory negligence in failing to look and observe the approach of the car at the time and place of the injury, and was not guilty of contributory negligence in driving his truck on the Bankhead Highway and parking the same on the south side, where he did park it, and from that position attempting to cross the Bankhead Highway under the conditions then existing.

From a reading of the statement of facts I fail to find any suggestion whatever in the evidence of any other cause of the injury, after excluding the acts of negligence and contributory negligence, which were formulated as issues and submitted to the jury, and upon which the jury made their findings as above stated. From this I am led to the conclusion that the evidence did not raise an issue of proximate cause. If plaintiffs and their minor son were guilty of the negligence charged and found by the jury, and the plaintiff, Grady Gibson, was not guilty of contributory negligence in any of the respects mentioned, and there being no suggestion in the evidence of any other cause for the injury, it seems to me that we are under the duty to hold, as a question of law, that the negligence was the proximate cause of the injury. It is just like any other material fact constituting an element of a cause of action. If the evidence raises an issue as to the proximate cause of an injury, a question for the jury is presented. But, on the other hand, if all the evidence shows that defendant's negligence was the proximate cause of the injury, it is not only not necessary to submit the question of proximate cause to the jury, but under some circumstances may constitute reversible error to do so.

In Texas P. R. Co. v. McCoy, 90 Tex. 264, 38 S.W. 36, negligence was predicated upon the railroad having permitted its roadbed to get out of repair so that it had low places in it. Plaintiff was injured in undertaking to couple cars, having laid a crossbar on his knee as he, riding upon one car, approached the other car. The low place in the track caused the crossbar to crush his leg. In that opinion Judge Gaines said: "If the plaintiff had not placed the bar upon his knee, in the nature of things his knee could not have been injured by the downward pressure of the bar resulting from the low joint. Hence there was no question whether or not the act of the plaintiff contributed to the injury. As to his act, the sole question was, whether or not it was negligent? It has frequently been held reversible error to submit in a charge to a jury an issue not made by the evidence, unless it is clear that the jury were not misled thereby."

In Gulf, C. S. F. R. Co. v. Rowland, 90 Tex. 365, 38 S.W. 756, Judge Gaines said: "Proximate cause, literally, means the cause nearest to the effect produced, but in legal terminology the terms are not confined to their literal meaning. Though a negligent act or omission be removed from the injury by intermediate causes and effects, yet if the party guilty ought reasonably to have foreseen the ultimate consequence, such negligence is deemed in law the proximate cause of the injurious effect." And again the court held that, there being no question that the negligence caused the injury, it was error to submit an issue of proximate cause.

In Culpepper v. International G. N. Ry. Co., 90 Tex. 627,40 S.W. 386, the negligence of the defendant was predicated upon an engineer failing, on stopping his train, to signal the brakeman to flag following trains, as required by his regulations. It was held that his default, if it was the cause of the injury, was a proximate cause, and that it was error to submit the question of proximate cause to the jury.

Parks v. San Antonio Traction Co., 100 Tex. 222, 94 S.W. 331,98 S.W. 1100, involved the same question; but there, on the facts, it was held that the charge on proximate cause could not have misled the jury and was therefore harmless.

If proximate cause was not an issue necessary to be submitted to the jury, but the negligence was, as a matter of law, the proximate cause of the injury, and the jury having found the issues of proximate cause favorable to the plaintiff, it seems to me there could be no harm in the error of failing to define "new independent cause." From this I conclude that, at least so far as this point is concerned, the judgment of the trial court should be affirmed.