Dallas Ry. & Terminal Co. v. Black

Decision Date22 April 1953
Docket NumberNo. A-3996,A-3996
Citation152 Tex. 343,257 S.W.2d 416
PartiesDALLAS RY. & TERMINAL CO. v. BLACK et al.
CourtTexas Supreme Court

Burford, Ryburn, Hincks & Ford and Howard Jensen, Dallas, for petitioner.

Millinax & Wells and William D. Kimbrough, Dallas, for respondents.

SMEDLEY, Justice.

The wife of respondent Bernie C. Black suffered injuries when petitioner's bus on which she was a passenger was struck from the rear by a truck owned by Adrian Cody. In respondent Black's suit against petitioner Dallas Railway & Terminal Company and Adrian Cody the jury acquitted the bus driver of all acts of negligence alleged except that it found he was negligent in failing to keep a proper lookout to the rear, but it found that his negligence in that respect was not a proximate cause of the collision. The jury found that the driver of defendant Cody's truck was negligent in several particulars and that his negligence proximately caused the collision. The trial court's judgment was that respondent recover from Adrian Cody $1,000 and that he take nothing against petitioner, Dallas Railway & Terminal Company. On appeal by respondent Black the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for new trial. 254 S.W.2d 147, 148.

The first point of error complains of the ruling of the Court of Civil Appeals with respect to the definition of proximate cause given by the trial court in its charge. That definition is as follows:

"By the term 'proximate cause,' as used in this charge, is meant that cause, which in its natural and continuous sequence, produces a result that would not have occurred but for such cause, and which said result or some like result ought reasonably to have been foreseen or anticipated in the light of the attending circumstances."

Respondent objected to the definition because as applied to the driver of the bus it failed 'to encompass the high degree of care which such driver * * * must exercise in reasonably foreseeing * * * the result'. And respondent requested the court to define proximate cause applicable to the conduct of the operator of the bus to mean 'that cause which in its natural and continuous sequence produces a result, and without which cause such result would not have occurred and which result or some similar result would not have been reasonably foreseen by a person in the exercise of a high degree of care in the light of the attending circumstances.' (Emphasis added.)

The Court of Civil Appeals held that the trial court committed reversible error in overruling the objection to the definition and in refusing to define proximate cause in accordance with respondent's request.

The trial court's charge defines negligence as applied to petitioner, its agents and employees, to mean a failure to exercise a high degree of care; and the position taken by respondent and sustained by the Court of Civil Appeals is in substance that the standard or degree of care required of the Railway Company as stated in the definition of negligence should have been included also in the part of the definition of proximate cause that refers to foreseeing or anticipating the result.

The definition of proximate cause given by the trial court conforms to the test as repeatedly stated by the decisions in this state in negligence cases, and it is in substance, including the use of the words 'foresee' and 'anticipate', the definition used by the trial courts of the state for many years. This concept of causal connection and the definition used have been subject to criticism as unduly restrictive, confusing and illogical in the use of the 'foreseeability of harm' formula, which, it is said, 'is properly used to determine the issue of negligence but has no bearing on causal relation'. Proximate Cause in Texas Negligence Law, by Leon Green, 28 Texas Law Review, p. 476, pp. 471-490, 621-645, 755-782. See also: Negligence, Duty and Causation in Texas, by W. Page Keeton, 16 Texas Law Review, pp. 1-7, 11-12; Duty, Negligence and Causation, by Clarence Morris, 101 University of Pennsylvania Law Review, pp. 189-200, 206-213; Restatement of the Law of Torts, Vol. 2, Sec. 430-435, pp. 1156-1177.

However, notwithstanding the criticism, which seems to be well founded in part at least, the test used in the trial court's definition and the definition including the element of foreseeableness have been uniformly approved as the rule in this state. Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Gulf, C. & S. F. Railway Co. v. Bennett, 110 Tex. 262, 219 S.W. 197; San Antonio & A. P. Railway Co. v. Behne, Tex.Com.App., 231 S.W. 354; City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 27 A.L.R. 927; Gulf, C. & S. F. Railway Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659; Southwestern Bell Telephone Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418; International-Great Northern R. Co. v. Lowry, 132 Tex. 272, 277-278, 121 S.W.2d 585; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 247-248, 223 S.W.2d 613.

The same rule has been followed in many states, although there is a trend in some of the late decisions to eliminate foreseeable consequences in determining proximate cause and to hold the defendant responsible for all damages that in fact result from his negligent conduct. Sherman and Redfield on Negligence (Rev.Ed.) Vol. 1, pp. 91-99, Secs. 33-36; 38 Am.Jur. pp. 705-715, Secs. 57-62.

We find no decision directly decisive of the question presented here. The opinion of the Court of Civil Appeals cites as in point two cases which hold that the giving of a charge defining proximate cause in substantially the same language as that contained in respondent's requested definition is not reversible error. They are Dallas Railway & Terminal Co. v. Menefee, Tex.Civ.App., 190 S.W.2d 150, and Dallas Railway Co. v. Hallum, Tex.Civ.App., 276 S.W. 460, application for writ of error refused. It does not follow from those decisions, however, that there is reversible error in refusal to define proximate cause so as to require the defendant to exercise a high degree of care in foreseeing the result.

Chief Justice Phillips, speaking for this Court in Galveston, H. & S. A. Railway Co. v. Bell, 110 Tex. 104, 106, 216 S.W. 390, 391, which was a suit against a railway company for personal injuries suffered by a passenger, said:

'The test as to whether a given act may be deemed the proximate cause of an injury, is simply whether in the light of all the attending circumstances the injury was such as ought reasonably to have been anticipated as a consequence of the act.'

In Panhandle & S. F. Railway Co. v. Miller, Tex.Civ.App., 64 S.W.2d 1076, 1077, the appellant complained of the usual definition of proximate cause given in the court's charge because it failed 'to apply the standard of ordinary care and prudence to the element of foreseeability'. In overruling the contention the Court, through Justice Funderburk, said:

"Ordinary care' is the test of the existence of not of negligence. Any inquiry as to proximate cause presupposes the existence of negligence, and therefore, of course, the existence of a failure to exercise ordinary care. We think that, after a jury has determined issues of negligence and therein have found that, in certain acts or omissions, the defendant failed to exercise that degree of care and prudence which an ordinarily prudent person would have done under the same or similar circumstances, it is sufficient, in order to enable them to further determine whether such acts or omissions were proximate causes of certain injuries, that they be informed that, to be such, the acts or omissions must have been such that it could reasonably have been foreseen that some such injury would likely result.'

In Kirkpatrick v. Neal, Tex.Civ.App., 153 S.W.2d 519, 525, a suit under the guest statute, the appellant complained of the definition of proximate cause given in the charge because it permitted a finding of proximate cause if the result should have been foreseen by a person of ordinary prudence rather than by a person acting in heedless and reckless disregard of the rights of others. In rejecting appellant's contention the Court said:

'It is believed that as the term 'proximate cause' has a well settled and long established legal meaning, that such meaning in the language usually used in expressing same is all that is required in embodying same in a charge to the jury, and this without regard to the quality of the act of negligence alleged, this going only to the degree of relief authorized by law.'

The three decisions last cited at least tend to sustain the trial court's ruling rather than that of the Court of Civil Appeals. According to those decisions it is enough, regardless of the quality of the act of negligence alleged, that proximate cause be defined in the usual manner without adding to the definition words relating to the degree of care that the defendant is under the duty of exercising. Such words are appropriate to the issue of negligence rather than to causal connection.

The definition of negligence given in the court's charge instructs the jury that negligence as applied to the Railway Company means a failure to exercise a high degree of care and that as applied to the driver of the truck it means a failure to exercise ordinary care. In our opinion no good purpose would be served by enlarging the definition of proximate cause so as again to instruct the jury in that definition as to the degrees of care that the defendants respectively are required to use. It might be logical after using foreseeableness, which is an element of the issue of negligence, as a part of the definition of proximate cause, to go farther and include also a definition or explanation of the care to be used by the defendant in foreseeing a harmful result and thus to bring into the definition of proximate cause more of what belongs to the issue of negligence. But...

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