On Motion for Rehearing. In his motion for rehearing appellee presents that the question of proximate cause is not in this case and prays that the judgment heretofore entered be set aside and an affirmance ordered, for the reasons set forth in the dissenting opinion, citing as authority only the cases cited in that opinion. Since the motion merely adopts the views of the dissenting opinion, what we state in disposing of the motion must necessarily appear as if it were written in reply to the dissenting opinion. The majority of the court would not ordinarily reply to a dissenting opinion and thereby appear to be conducting an open discussion with one of their associates, but in writing on this particular motion we are compelled to do so.
The only difference between the majority and the minority relates to the question of whether or not, as a matter of law, the negligent acts found by the jury to have been committed by appellants were the proximate cause of appellee's injuries. Undoubtedly, facts might exist in a given case which would be so conclusive in their nature as to establish, as a matter of law, that a certain act of negligence was the proximate cause of an *Page 746 injury; but such cases are indeed rare, and an examination of the authorities will reveal but few instances in which facts have been so interpreted. In determining whether a certain negligent act was the proximate cause of an injury, only the facts are to be considered. The findings of the jury convicting the defendant of negligence and exonerating the plaintiff from contributory negligence are to be given no weight. To our minds, a holding that, since the jury found the defendants negligent and the plaintiff not negligent, and since there is absent from the record evidence that the injuries were inflicted by some other agency or cause, the question of proximate cause was thereby eliminated, is to practically do away with the well-established doctrine of proximate cause. In all negligence cases in which the plaintiff recovers there is a fact finding of negligence against the defendant, and where contributory negligence is pleaded and in any degree supported by evidence, a fact finding exonerating the plaintiff therefrom.
Nothing is better settled than that the question of whether an act of negligence was the proximate cause of an injury is a fact issue. This is true, even though the defendant be guilty of negligence per se. Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363. That question being a fact issue, then the general rule with reference to fact issues must be applied, and in order to justify the court in holding, as a matter of law, that a fact issue had been established to such an extent that same should not have been submitted to the jury, the evidence must be such as that ordinary minds could not differ with respect thereto.
One of the grounds of negligence found by the jury in the instant case, as against the minor, was the speed at which he was driving the car. An examination of the facts convinces us that there is great latitude within which reasonable minds could differ as to whether the injury would have occurred had the minor been driving at a slower rate of speed. To hold that the act of negligence in driving too fast was the proximate cause of the injury is to hold, as a matter of law, that the injury would not have occurred had the car been driven at a lawful rate of speed.
Another ground of negligence found by the jury was the failure of the driver to sound his horn. There was evidence in the record that the driver did not see appellee until he was within a few feet of him. There is abundant latitude for a difference of opinion as to whether the sounding of the horn would have prevented the injury. To hold that this act of negligence was the proximate cause of the injury, as a matter of law, is to hold that reasonable minds could not differ on the question of whether the injury would have occurred had the driver sounded his horn.
The particular finding of the jury upon which the judgment was rendered against the father and mother of the minor was the finding that the parents were guilty of negligence in permitting their son to use the car at the time and place of the injury. There is another finding that the father of the minor did not give his permission for his son to use the car at that time, and the evidence would support the conclusion that he did not know about it at all.
The suit is not predicated upon the doctrine of principal and agent, as are most cases in which parents are held liable for injuries inflicted by their children while driving an automobile, but upon the ground of negligence on the part of the parents in permitting their son to drive the automobile. In order to affirm this case and hold that the question of proximate cause was not a fact issue therein, we would be required to hold, as a matter of law, that the negligence of the parents in permitting their son to drive the car in question at the time and place of the injury was the proximate cause of the injury, and this in the face of a finding that the father did not give his permission for such use at said time. This court held in the recent case of Hutton v. Burkett, 18 S.W.2d 740, motion for rehearing in which case was overruled on last submission day, that we would not be warranted in holding a given act of negligence to be the proximate cause of an injury as a matter of law unless we could determine that reasonable minds could not differ on the question of whether the one guilty of negligence should have foreseen that the injury complained of, or one of similar nature, would result from the negligent act.
There is a finding in this case that the parents should have reasonably anticipated the accident furnishing the basis of this suit as a consequence of permitting their child to use the automobile, but the finding that the father did not permit him to use the automobile on the occasion in question at least raises some doubt as to whether he should have anticipated the consequences of his using it, as well as some doubt as to whether he could have been guilty of negligence in permitting him to use it.
To our minds there can be no possible distinction between this case and the case of Thomas v. Goulette, cited in our original opinion. We believe that decision was correct, and that it followed the well-established precedent therein cited, and are unwilling to overrule it.
The motion for rehearing will be overruled. *Page 747