When we originally decided this case and our original opinion was prepared I entertained grave doubts of the soundness of our conclusions. Upon further consideration of the questions on motion for rehearing I have reached the conclusion that appellant's contentions that under the evidence shown by the record the issue of unavoidable accident should have been submitted to the jury, and that the charge of the court should have defined the meaning of the term "new and independent cause" used in the charge, should be sustained. As shown in our original opinion the only negligence found by the jury was the failure of appellant to have his bus equipped with a sufficient wiper to keep the windshield clear for vision, and the failure of the driver of the bus to keep a proper lookout to observe the condition of the roadway. Each of these acts of negligence was found by the jury to be the proximate cause of plaintiff's injuries.
The only evidence as to the direct cause of the accident was the following: The plaintiff testified: "Coming now to the place where the accident occurred: He was driving thirty-five miles an hour; it was on a bad night and the windshield was dark and cloudy and he really couldn't see very well, *Page 382 and he just ran off the road — the bus ran off the road, the right hand side of the road, running into a ditch about four or five feet deep."
The bus driver explained the causes that brought about the mishap as follows: "I was on a straight road driving slowly and the car came around the curve at about sixty miles an hour, and the lights on it were very bright, and when those lights got in my face I was in the dark and I slowed down, mighty near to a standstill, and I missed the road and got off on the edge of the road a little too far and the bus slipped off this bank of about a three foot ditch and laid over on its side."
Miss McCoy, who was riding on the front seat of the bus, testified with reference to the driver's action as the approaching car rounded the turn, as follows: "* * * And he said, `1 can't drive against those cars, those lights; I am going to pull up and stop for those cars to go by.' So he shifted the gears and pulled up on the side of the road and the bus didn't turn over with a jolt but just slipped over; it just eased over."
Mrs. Martin, another passenger on the front seat testified: "When this bus rolled over in the ditch that night it was just rolling, barely moving; it just rolled over on the side in the ditch. * * * Mr. Wright pulled over to the side of the road and stopped, almost came to a standstill on the edge of the road, with the front wheels on the right hand side; the ground gave out from under the right front wheel and that let the car roll when the dirt gave down under that right front wheel, and it rolled and just turned on its side in the ditch."
John Lane, who inspected the scene of the accident on the following day and drove the bus back to town, explained the upset in these words: "The dirt gave way under the wheels."
It will he here noted that there was no finding of the jury that the driver of the bus was negligent in driving at a too rapid rate of speed, and, as before stated, they only found negligence against the driver in his failure to keep a proper lookout.
It is obvious that, if the sudden appearance around the curve in the road of the approaching automobile with the headlights so glaring as to make it impossible for the driver to see the roadway and keep off its insecure unpaved portion which gave way under the weight of the truck caused it to slide into the ditch, neither of the acts of negligence found by the jury could have been the proximate cause of plaintiff's injury. This was an ultimate fact issue in the case as made by the pleadings and evidence and should have been submitted to the jury. The trial court seems to have recognized the propriety, if not the necessity, of submitting this issue by his definition of proximate cause given in his charge to the jury. The definition was technically accurate as applied to the fact issues raised by the evidence, but the legal meaning of the term "new and independent cause" is not presumed to be known and understood by a layman, and this legal meaning should upon the request of the defendant have been properly explained to the jury. This question has been expressly decided in favor of appellant's contentions in the following cases: Robertson Mueller v. Holden (Tex.Com.App.) 1 S.W.2d 570; Thomas v. Goulette (Tex.Civ.App.) 12 S.W.2d 829: Stamper v. Scholtz (Tex.Civ.App.) 17 S.W.2d 184; Rio Bravo Oil Co. v. Matthews (Tex.Civ.App.) 20 S.W.2d 342; Texas Electric Ry. v. Scott (Tex.Civ.App.)21 S.W.2d 24.
I think the motion for rehearing should be granted, and the judgment reversed, and the cause remanded for retrial.