On Motion for Rehearing. In the original opinion in this case, prepared by Associate Justice Brooke, there appears this language:
"It seems to be laid down as a principle that when it has once been determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences whether he could have foreseen it or not."
Appellant, in its motion for rehearing in this court, has called our attention to the above-quoted paragraph in our original opinion, and by way of criticism of that paragraph says that this court has, in effect, announced the law to be that where one is guilty of negligence which results in injury to another the person so guilty should be held to respond in damages regardless of whether such negligence was a proximate cause of such injury or not.
Taking the paragraph quoted in the original opinion alone, the criticism offered by appellant would be just and appropriate, but when the entire opinion is considered it will be manifest that the court did not intend to hold, and did not hold, that a person injured by negligence on the part of another would be entitled to recover against the person guilty of such negligence regardless of whether the injury complained of was proximately caused by such negligence. On the contrary, this court fully recognizes the rule that proof of negligence alone on the part of a defendant sought to be held responsible in damages by one injured in consequence of such negligence would not authorize a recovery by the person so injured, but in order to warrant a recovery it would have to be further shown that the negligence complained of was a proximate cause of the injury sustained. This would be true whether the negligence was admitted by the defendant or established by evidence, while being denied by the defendant sought to be held for such negligence.
In this case, after properly defining "negligence," the trial court also gave to the jury the following definition of "proximate cause," to which no objection was interposed by appellant, to wit:
"`Proximate cause' of an injury is not necessarily the cause nearest in time or physical sequence, but is a cause without which the injury would not have happened, and from which that injury or some like injury might reasonably have been anticipated as a natural and probable consequence."
We think that this definition of "proximate cause" was substantially correct, and was all that was required for the protection of appellant upon the facts in this case, and, presumably, appellant's counsel were of the same opinion, otherwise they would probably have objected to the definition of "proximate cause" as given by the court.
The only question raised on the appeal in this case the solution of which we conceived to be attended with difficulty is whether the admitted negligence on the part of appellant in operating its train in the city of Houston on the occasion in question at a rate of speed greatly in excess of that permitted by the ordinances of the city could be held as a matter of law not to have been a proximate cause of the injury sustained by the appellee. We considered that question very carefully before the original opinion was prepared, and concluded that this court would not be authorized in holding as a matter of law that such admitted negligence was not a proximate cause of such injury. The jury found affirmatively that such negligence was a proximate cause, guided, presumably, in doing so by the definition of "proximate cause" as contained in the court's charge; and, after careful consideration of appellant's motion for rehearing, we are still of opinion that the issue of proximate cause in this case was one of fact for the determination of the jury, as is usually so in cases of this character, and that we would not be authorized to hold that the evidence was insufficient to sustain the jury's finding that the excessive rate of speed of appellant's train on the occasion in question was a proximate cause of appellee's injury.
It is the contention of appellant, in effect, that it was the train's presence and not its speed which caused the horse mentioned in the original opinion to become frightened and unmanageable, and that, therefore, the excessive rate of speed, although admitted to be negligence on appellant's part, really had nothing to do with causing appellee's injury.
Upon the facts as a whole, the jury found contrary to this contention, and we think that we should not disturb such finding.
We shall not further discuss the motion for rehearing, which has been considered as to every point raised, but, believing that we were correct in the original disposition made of this appeal, the motion will be overruled, and it is so ordered. *Page 551