Young v. Massey, 7147.

• Decision Date: 11 February 1937
• Docket Number: No. 7147.,7147.
• Citation: 101 S.W.2d 809
• Parties: YOUNG v. MASSEY et al.
• Court: Texas Supreme Court

Page 809

101 S.W.2d 809

YOUNG v. MASSEY et al.

No. 7147.

Supreme Court of Texas.

February 11, 1937.

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

Suit by C. R. Massey individually and as father and next friend of Paul Massey, a minor, against J. A. Young, doing business under the trade-name of Young Motor Freight Lines. Judgment of the Court of Civil Appeals [95 S.W.(2d) 542], affirming a judgment of the District Court for plaintiffs, defendant brings error.

Affirmed.

King, Wood & Morrow and H. E. Cox, all of Houston, for plaintiff in error.

W. E. Monteith, Sam Neathery, and Lewis W. Cutrer, all of Houston, for defendants in error.

CRITZ, Justice.

This suit was instituted in the district court of Harris county by C. R. Massey for himself, and as next friend for his minor son, Paul Massey, against J. A. Young, doing business under the trade-name of "Young Motor Freight Lines," to recover damages because of injuries suffered by Paul Massey while riding a bicycle on a public street in the city of Houston, Tex. It is alleged that Paul Massey was struck and injured by a truck belonging to Young, and that such accident was caused by the negligence of the driver of the truck, who was the servant and employee of Young. Trial in the district court, where the case was submitted to a jury on special issues, resulted in a verdict and judgment for both plaintiffs. This judgment was affirmed by the Court of Civil Appeals at Galveston. 95 S.W.(2d) 542. The case is before this court on a writ of error granted on application of Young.

As already stated, the case was submitted to a jury in the trial court on special issues. The substance of these issues is set out in the opinion of the Court of Civil Appeals, and in the interest of brevity we do not repeat them here. The trial court submitted several issues of negligence on the part of the driver of the truck. Also, the trial court submitted several issues of contributory negligence on the part of Paul Massey. The jury found all issues of negligence and contributory negligence in favor of the Masseys and against Young. In connection with such issues the trial court defined negligence and proximate cause. The definition of proximate cause is under attack in this appeal. The definition given is as follows: "`Proximate cause' is a cause without which injuries complained of would not happen, and from which such injuries or some like injuries might reasonably be anticipated as a natural and probable consequence by a person of ordinary care and prudence. There may be more than one proximate cause of an event."

Young objected to the above definition of proximate cause, because it does not include and define the term new and independent cause. It is the settled law of this state that if the evidence in a negligence case raises the issue of new and independent cause, it is reversible error not to include the term in the definition of proximate cause. Also, if such term is necessary to be used in the definition of proximate cause, it is reversible error not to define it. Phœnix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.(2d) 60, 61; Orange & N. W. R. Co. v. Harris (Tex.Sup.) 89 S.W.(2d) 973; Southland Greyhound Lines v. Cotten (Tex.Com.App.) 91 S.W. (2d) 326. In the opinion in the Cotten Case, supra, this court discussed many of the authorities which hold contrary to our holding, supra, and expressly overruled them. In the case at bar the Court of Civil Appeals quotes from the opinion in Williams v. Rodecker (Tex.Civ.App.) 84 S. W.(2d) 556, wherein it seems to be held that in...