ON REHEARING.
Mr. Justice Calvertdelivered the opinion of the court.
Both parties have filed motions for rehearing.
10 There is no new matter in the defendant’s motion. In connection with our discussion of the trial court’s definition of unavoidable accident, the defendant suggests, and we agree, that notice should be taken of the apparent conflict in the holdings of this court in the cases of Dallas Railway & Terminal Co. v. Price, 131 Texas 319, 114 S.W. 2d 859, and Houston Electric Co. v. McLeroy, 139 Texas 170, 163 S.W. 2d 1062, on the one hand, and in the case of Texas Textile Mills, et al v. Gregory 142 Texas 309, 177 S.W. 2d 938 and the instant case on the other hand. In so far as the holdings in the Price and McLeroy *370cases are in conflict with the holding here, and to that extent only, those cases are overruled. Unavoidable accident should be defined as an event not proximately caused by the negligence of any party to it. If it is the position of a defendant in any case that he is entitled to be absolved of liability because the event was caused by the negligence of a co-defendant or of a party to the event who is not a party to the suit, he may, and usually does protect himself through pleadings, proof and findings that the negligence of such person was the sole proximate cause of the event.
11 In her motion for rehearing the plaintiff urges that we were in error in remanding this case to the Court of Civil Appeals for consideration by that court of the defendant’s points of error challenging the sufficiency of the evidence to sustain the negative findings of the jury to issues on contributory negligence. She says that assignments of error in a motion for new trial were a prerequisite to points of error in the Court of Civil Appeals and that in the defendant’s motion for new trial filed in the trial court there were no assignments challenging the sufficiency of the evidence to support the findings of the jury. A re-examination of the record substantiates this contention.
Accordingly, that portion of our judgment remanding this cause to the Court of Civil Appeals for further consideration is set aside and the judgment of the trial court is affirmed. In all other respects both motions are overruled.
Opinion delivered July 23, 1952.