Allison v. St. Louis S.W. Ry. , 257 S.W. 959 ( 1924 )

In Seale v. Ry. Co., 65 Tex. 274, 57 Am.Rep. 602, the plaintiff, suing for damages for the death of her daughter, alleged in her petition that the daughter, 15 years of age, was fatally burned while exercising due care in fighting fire negligently set out by the defendant, and which was destroying property belonging to the plaintiff. The Supreme Court concluded that the proximate cause of the daughter's death was her attempt to put out the fire, and not the negligence of the defendant in starting it, and affirmed the judgment of the trial court sustaining exceptions to the plaintiff's petition. After stating that "the tendency of our courts" is "not to regard the original negligent act as the proximate cause, where any new agency, not within the reasonable contemplation of the original wrongdoer, has intervened to bring about the injury," the Supreme Court said:

"From the allegations of the present petition, it is clear that but for the attempt of the deceased to put out the fire, her death would not have ensued. This act of hers was the new agency, which, supervening upon the original wrongful act of the appellee, brought about the misfortune of which the appellant complains. The defendant should have anticipated that its negligence would endanger the property of the plaintiff. It should have anticipated that plaintiff, and perhaps others, would attempt to extinguish the fire and thereby save her property. But could it have anticipated that in this attempt the life of any one would be lost? * * * That one exercising due care, and incurring no risks, in extinguishing a fire, should have the flames communicated to her clothes, and thereby lose her life, is something so improbable that the anticipation of it should not be charged to any one under such circumstances. Such a thing might happen, but it would be only from some casualty which could not possibly be foreseen; and, in such cases, as we have seen, the original negligence cannot be regarded as the proximate cause of the injury."

We see no material difference between the facts, as alleged, of the Seale Case and this one, and therefore feel bound to hold that the trial court did not err when he dismissed appellants' suit.

The judgment is affirmed.