Southland Greyhound Lines v. Cotten

• Decision Date: 19 February 1936
• Docket Number: No. 1591-6459.,1591-6459.
• Citation: 91 S.W.2d 326
• Parties: SOUTHLAND GREYHOUND LINES, Inc., v. COTTEN.
• Court: Texas Supreme Court

91 S.W.2d 326

SOUTHLAND GREYHOUND LINES, Inc., v. COTTEN.

No. 1591-6459.

Commission of Appeals of Texas, Section B.

February 19, 1936.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by E. E. Cotten against the Southland Greyhound Lines, Incorporated. Judgment for plaintiff was affirmed by the Court of Civil Appeals [55 S.W.(2d) 1066], and defendant brings error.

Judgments of the trial court and Court of Civil Appeals reversed, and case remanded.

Kemper, Hicks & Cramer, of Houston, John H. Awtry, of Dallas, D. C. Bland and Hollis M. Kinard, both of Orange, Barnes & Barnes, of Beaumont, Cole, Cole, Patterson & Kemper, of Houston, and J. B. Robertson and Dan Moody, both of Austin, for plaintiff in error.

K. W. Stephenson, Martin Dies, and Dies, Stephenson & Dies, all of Orange, for defendant in error.

TAYLOR, Commissioner.

E. E. Cotten sued the Southland Greyhound Lines, Inc., for injuries sustained by his wife. The parties will be referred to as plaintiff and defendant, respectively. Upon findings made by the jury judgment was rendered in plaintiff's favor. The Court of Civil Appeals affirmed the judgment. 55 S.W.(2d) 1066, 1069.

Plaintiff alleged, and the jury found, that defendant was negligent in driving at a dangerous rate of speed, in driving with defective brakes, and driving without keeping a proper lookout. The scene of the accident was between Beaumont and Orange on the west side of Coale's creek off the bridge spanning the creek at that point. On that side of the creek there were guard rails on both sides of the highway for some distance leading to the bridge.

Defendant alleged that some one unknown to it had negligently parked a car and a truck between the balusters of the narrow bridge and dump leaving barely enough room on the side of the parked car and truck for heavy traffic to pass, and that this unknown party was guilty of negligence (1) in leaving the car and truck so parked; (2) in leaving the car and truck parked at or near a sharp curve in the road around which heavy traffic was at all times passing without proper signals indicating that the car was blocking the traffic; (3) in leaving the car so parked without having the lights burning in the front and rear of the car; in other respects not necessary to enumerate. Defendant further alleged that each of the acts of negligence was the sole proximate cause of the collision. Defendant pleaded also the approach of a car with blinding headlights which prevented the bus driver from seeing plaintiff's car stop in time to avoid the collision.

The facts pleaded by plaintiff disclose the relevancy of the acts of third persons in parking cars on the side of the highway as bearing upon the negligence alleged to have caused the collision. In his amended petition he says: "The plaintiff was driving his said car along said highway or public thoroughfare and on account of the obstruction of said highway by other cars which had stopped ahead of him, it was necessary for the plaintiff to stop his said car, which he did, and after he had brought his car to a stop, the said bus of the defendant collided with said car of plaintiff and damaged and partly demolished same."

It was alleged by plaintiff, and recognized by the pleadings of the defendant, that an agency other than the acts of the parties figured prominently in the collision. This is apparent also from the evidence set out in the opinion of the Court of Civil Appeals and other evidence disclosed by the record. The fact issue is clearly and concretely raised as to whether some new and independent cause intervened between defendant's alleged negligent acts and the injury.

The definition of "proximate cause" given for the jury's guidance reads: "You are instructed that the term `proximate cause' as that term is used in the following issues, means a moving and efficient cause, without which the injury in question would not have happened; an act or omission becomes a proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question and one that ought to have been foreseen by a person of ordinary care and prudence in the light of attending circumstances. It need not be the sole cause, but it must be a concurring cause, which contributed to the production of the result in question, and but for which the said result would not have occurred." The main objection urged by defendant to the foregoing charge is that it does not embody the idea of a new independent cause.

The Court of Civil Appeals upheld the charge as against this objection with the statement: "This definition of `proximate cause' was sustained in West Texas Coaches v. Madi (Tex.Civ.App.) 15 S.W.(2d) 170, on authority of Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, and Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602."

The Court of Civil Appeals, in its holding in the Madi Case that the definition was correct, took cognizance that the evidence raised the issue of "new independent cause," but approved the definition under the misapprehension that the definition embodied the idea, saying: "We are of the opinion that it lacks nothing of the element suggested by the expression `continuous sequence unbroken by any new and independent cause.'" The same court in a later case [Texas & P. R. Co. v. Short, 62 S.W. (2d) 995, 999], suggested that a sufficient definition of "proximate cause," stripped of nonessentials, is as follows: "Proximate cause is a cause which should reasonably have been foreseen as likely to cause the injury in question or some similar injury," citing in support of the suggested definition the Madi Case among others.

The Court of Civil Appeals erred in its holding in the Madi Case that the definition in question lacked nothing of the element of new independent cause; and the definition suggested in Texas & P. R. Co. v. Short, supra, is incomplete. Nor do we concur in the further statement made in connection therewith that: "To say that the natural and continuous sequence in which the cause must operate to constitute `proximate cause' must be `unbroken by some new and independent cause' * * * is not only to repeat what is implied in the word `cause,' but is, in effect, to give the jury a special charge on the law of negligence, which is prohibited and in no sense essential to enable the jury to understand the meaning of the term `proximate cause.'"

It is reversible error, in a cause in which the testimony tends to prove the injury resulted from a new independent cause, not to submit a definition of "proximate cause" embodying that term, or a similar term, together with a definition of same. Phoenix Refining Co. v. Tips (Tex.Com.App.) 81 S.W.(2d) 60; Orange & N. W. R. Co. v. Luther Harris et al. (Tex.Sup.) 89 S.W.(2d) 973 not reported [in State report]; Dixie Motor Coach Corporation v. Galvan et ux. (Tex.Com.App.) 86 S.W.(2d) 633; Greer v. Thaman et al. (Tex.Com.App.) 55 S. W.(2d) 519; Blanch v. Villiva et al. (Tex. Civ.App.) 22 S.W.(2d) 490; Thomas v. Goulette (Tex.Civ.App.) 12 S.W.(2d) 829; Robertson & Mueller v. Holden (Tex.Com. App.) 1 S.W.(2d) 570.

Some confusion is apparent in the decisions upon this question. See West Texas Coaches v. Madi, supra; Texas & P. Ry. Co. v. Short, supra; Panhandle & S. F. R. Co. v. Miller (Tex.Civ.App.) 44 S.W.(2d) 790; Texas & P. Ry. Co. v. Bufkin (Tex. Civ.App.) 46 S.W.(2d) 714; Gulf Production Co. v. Adams et al. (Tex.Civ.App.) 49 S.W.(2d) 889; Orange & N. W. R. Co. v. Harris (Tex.Civ.App.) 57 S.W.(2d) 931; Southern Ice & Utilities Co. v. Richardson (Tex.Civ.App.) 60 S.W.(2d) 308; Three States Tel. Co. v. Kirkwood (Tex. Civ.App.) 61 S.W.(2d) 568; Panhandle & S. F. Ry. Co. v. Miller (Tex.Civ.App.) 64 S.W.(...