On Motion for Rehearing. Through 60 type-written pages, featuring 31 declared-upon grounds, appellant in an able motion for rehearing urges error in the original disposition of this cause, especially and at length urging these contentions: (1) That the issue of unavoidable accident was raised; (2) that the trial court reversibly erred in not defining the term "new or independent cause", as used by it in preliminarily defining "proximate cause", along with other terms used in its charge; (3) in not giving its requested special issues Nos. 28 and 29, seeking to further inquire — in addition to all the given issues designed to elicit whether the appellee had been in any material respect contributorily negligent — whether, in attempting to pass the truck, he had failed to exercise ordinary care to give way to his righthand side of the road and operate his automobile as near the right-hand edge thereof as reasonably possible.
After another laborious examination of this extended record and statement of facts, this court is contrained to adhere to its former decision as having been correct; in then overruling these earnestly reiterated contentions, it did so upon the expressly stated conclusion that the undoubted theory of both sides upon which the cause was tried, and the evidence severally offered in support thereof, did not justify any of them — and not, as appellant apparently assumes, upon any legal illusion that the subsequent findings of the jury settled them adversely to it, as is instanced in such cases as Northern Texas Traction Co. v. Woodall, Tex.Com.App., 299 S.W. 220, Montrief v. Bragg, Tex.Com.App., 2 S.W.2d 276, and Davis v. Estes, Tex.Com.App., 44 S.W.2d 952.
Upon the contrary, in appraising the composite effect of the evidence as ? whole, with especial reference to this claim of the presence of unavoidable accident, and in concluding rather that it completely excluded that defensive matter, this court was guided by the rule thus stated in Orange N.W. R. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973, 974, cited in its original opinion:
"An unavoidable accident is one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every man bound to exercise. If the accident complained of could have been prevented by either party, by the use of means suggested by common prudence, it was not unavoidable."
To say that this accident could not have been prevented by either one or the other of the two parties to it by the use of means suggested by common prudence — that is, by each of them having remained on his own right-hand side of the black stripe in the center of that highway — is to belie the direct testimony of them both, iterated and reiterated throughout the whole gamut of their long examinations on the witness stand; in other words, it conclusively appears that if neither the one nor the other of them had been on his own left-hand side of the highway at the time, the collision would not and could not have happened; that being indisputably and unmistakably so, the inquiries were reduced to which one was so on his left-hand side, was he negligently there, and if so, did that negligence proximately cause the injuries to this appellee? Each driver, as originally found, and as is now confirmed from a reexamination of the whole body of the testimony, claimed that he was on the righthand side, and that the other was on the left-hand side, and stuck to it throughout the trial before the jury, thus raising that as the clear-cut and controlling fact-issue in the case; wherefore, such being the uncontroverted facts asserted on both sides, there could not at the same time, in utter contradiction on the only evidence there was, have been presented "a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law." Dallas Ry. Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777, 779; Reilly v. Buster, Tex. Civ. App. 52 S.W.2d 521; Id., 125 Tex. 323, 82 S.W.2d 931; Tarry Warehouse Storage Co. v. Price, Tex. Civ. App. 76 S.W.2d 162; *Page 959 Horton v. House, Tex. Civ. App. 13 S.W.2d 966, 969; Id., Tex.Com.App., 29 S.W.2d 984; International-G. N. R. Co. v. Lucas, 128 Tex. 480,99 S.W.2d 297, 301, 100 S.W.2d 97; Southland Greyhound Lines v. Dennison, Tex. Civ. App. 62 S.W.2d 500; 45 Corpus Juris, 735, 939.
The same and similar considerations outweigh the urge for prejudicial error in the use of this expression in the general part of the court's charge:
"The term `proximate cause', as used herein, means that cause which in natural and continued sequence, unbroken by any new or independent cause, produces the result complained of," etc.
On original hearing here, appellant urged that the fact-issue of a new and independent cause of this collision was in the case and should have been, by its request, submitted to the jury as such, but predicated that claim mainly if not wholly upon the insistence that the Ford sedan its truck overtook had speeded up just at the moment the truck was passing it, which sudden and unexpected intervention of a third party's act furnished the new and independent cause it contended for; on this rehearing, however, in urging that in any event the trial court's undefined use of the term "new or independent cause" was error, it repeats that the evidence did raise the issue of a new and independent cause for the jury, but changes predicates for it, by now saying that the lights of appellant's two approaching trucks, as well as that of the Ford sedan, shining in the appellee's face, must have blinded him into getting upon his own left-hand side of the black stripe, which he might have done without negligence upon his part, thereby furnishing a new and independent cause for the accident within the meaning of the authorities it cites in that connection; this court, after careful search, finds no such evidence, wherefore that new theory rests alone upon appellant's belated surmise and suspicion; none of the witnesses so testified; on the contrary, the appellee, without contradiction, directly testified that he was not so blinded nor interfered with by any of such lights, but saw each of them plainly in turn, that the Ford sedan and appellant's second truck got properly off of his half of the highway, and that its first truck itself had likewise done so, but left its attached trailer athwart the black line on his side, which he did not see at all until it was too late to do anything about it.
Wherefore, no issue of "new or independent cause" having been properly raised, it was not error prejudicial to the appellant's rights for the learned trial court not to have further defined what was apparently a mere routine or incidental use of that term in its introductory definition of proximate cause; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519; Reilly v. Buster, Tex. Civ. App. 52 S.W.2d 521, approved on question of new and independent cause by Texas Commission of Appeals, in 125 Tex. 323, 82 S.W.2d 931; J. Lee Vilbig Co. v. Lucas, Tex. Civ. App. 23 S.W.2d 516, writ dismissed.
As concerns appellant's claim that such definition of the term was by law imperative anyway, notwithstanding there may have been no evidence raising the issue of "new or independent cause", citing in support thereof Texas N. O. R. Co. v. Warden, 107 S.W.2d 451, by the El Paso Court of Civil Appeals, it may be said that, if it was there so held, that determination was not supported by the first Supreme Court decision upon which it was based — that is, Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60 — which holds such definition necessary, only where the evidence raises that issue.
Neither does this court find any sup — porting evidence for requiring the jury to have been cross-examined upon whether or not the appellee negligently failed to get further to his right-hand side of the highway, in attempting to pass the truck.; when the searchings already given the jury under the court's inquiries touching all phases of the issue as affected the appellee's conduct on the occasion are looked to, that is, special issues 10, 12, 14, requested special issues 2, 14, 20, 22, and 24, it seems clear that every defensive matter on that subject that had evidence of any probative force to support it was thereby adequately covered; no testimony was directed to the point here now claimed to have been developed as an ultimate fact-issue; as before indicated, each operator, without variation or shadow of turning, testified that he was entirely on his own righthand side of the road at the time, and a vast amount of other evidence was heard on the question as to which side of the middle black line the collision occurred on — indeed, that was made the ultimate, the controlling issue, not only by the operators of the colliding vehicles themselves, but by the other testimony as well; the jury's *Page 960 exclusive province was therefore properly invoked upon it.
Indeed, appellant's operator did not claim it was necessary for appellee to yield up more, or any part of the latter's right-hand side of the highway; on the contrary, his own insistence was that he would have had ample room, and that there would have been no collision, if the appellee had stayed anywhere on his own right-hand side of the black line — asserting only that appellee had encroached upon his (the truck driver's) right-hand side thereof, and had there collided with his trailer. That issue was submitted, and upon the evidence found favorably to the appellee; as this court sees it, it was clearly the ultimate fact-issue on that phase of this controversy.
The authorities upon this subject — touching the requirements, by law and decision, for travel upon the public highways of the state — were sufficiently cited in the original opinion and need not here be again pointed to. It is enough to say that, as those citations make manifest, a duty to remain upon his own side of such highway lay upon each of those operators at the time, and that whichever one violated it brought down upon his own head the consequences there denounced.
Without further discussion, under the final conclusion that the cause was fairly tried, and that the jury's verdict on sufficient evidence properly resolved all of the ultimate issues of fact raised by the pleadings and evidence, the motion for rehearing will be overruled.
Motion overruled.
PLEASANTS, C. J., absent.