(dissenting).
I am not in accord with the majority of the court in their disposition of appellants’ second assignment of error. The trial court, in the first and second issues submitted to the jury, inquired whether a “boomer handle” was permitted to protrude from the side of appellant Norton’s truck, and if so, whether the same was negligence. The third issue submitted was as follows: “Did such negligence, if any, directly cause the accident and any injury to the plaintiff, as alleged in the petition?”
The jury answered each of said group of issues in the affirmative. Appellants objected to the submission of said third issue, as follows: “Said question submits an immaterial issue to the jury, — the proper issue to submit being as to whether or not the said negligence was the proximate cause of the plaintiff’s injuries, and the giving of said special issue is prejudicial to the defendant.”
The court overruled said objection and did not submit in his charge any issue of whether said act of negligence was the proximate cause of appellee’s injuries. The action of the court in overruling said objection constitutes the basis of appellants’ said second assignment of error. It is not understood that there is any contention that said assignment is not sufficient to invoke a ruling of this court on the issue presented therein. Neither is it understood that there is any contention that said objection was not sufficient under the rules of practice to require the trial court to amend his charge to meet the same, if appellants were entitled to such amendment. See St. Louis, S. F. & T. Ry. Co. v. Green (Tex. Com. App.) 37 S.W.(2d) 123, 125, par. 5, and authorities there cited.
The term “proximate cause” has been variously defined. We quote in this connection the definition given by our Supreme Court in the case of Gonzales v. City of Galveston, 84 Tex. 3, 7, 19 S. W. 284, 285, 31 Am. St. Rep. 17, as follows: “By ‘proximate cause,’ we do not mean the last act of cause, or nearest act to the injury, but such act, wanting in ordinary care, as^ actively aided in producing the injury, as a direct and existing cause. It need not be the sole cause, but it must be a concurring cause, such as might reasonably have been contemplated as involving the result, under the attending circumstances. Eames v. Railway, 63 Tex. 664, 665; Jones v. George, 61 Tex. 353 [48 Am. Rep. 280]; Seale v. Railway, 65 Tex. 277, 278 [57 Am. Rep. 602]; Brandon v. Manufacturing Co., 51 Tex. 128; 1 Thomp. Neg. 144; 2 Thomp. Neg. 1100, § 12 and note; 1 Suth. Dam. 20, 22.” (Italics writer’s.)
Assuming that the submission of the issue of whether appellant Norton’s negligence was the “direct cause” of appellee’s injuries was *937sufficient on other phases of the definition above quoted, it is clear that it wholly failed to include the element of anticipation of possible injury as a result thereof. The importance of such element in determining the issue of proximate cause is forcibly stated by our Supreme Court, speaking through Chief Justice Phillips, in Galveston, H. & S. A. R. Co. v. Bell, 110 Tex. 104, 106, 216 S. W. 390, 391, as follows: “The test as to whether a given act may be deemed the proximate cause of an injury, is simply whether in the light of all the attending circumstances the injury was such as ought reasonably to have been anticipated as a consequence of the act.”
The rule so announced is supported by a practically unbroken line of decisions of our Supreme Court and the Commission of Appeals. St. Louis, S. F. & T. Ry. Co. v. Green, supra, par. 4, and authorities there cited; Union Stockyards v. Peeler (Tex. Com. App.) 37 S.W.(2d) 126, 128, pars. 3 and 4; City of Dallas v. Maxwell (Tex. Com. App.) 248 S. W. 667, 670, pars. 2 and 3, 27 A. L. R. 927; Payne v. Robey (Tex. Com. App.) 257 S. W. 873, 875, par. 2; Dallas Railway Co. v. Warlick (Tex. Com. App.) 285 S. W. 302, 304, par. 2; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 225, 38 S. W. 162; Gulf, C. & S. F. Ry. Co. v. Rowland, 90 Tex. 365, 370, 38 S. W. 756; International & G. N. R. Co. v. Walters, 107 Tex. 373, 377, 179 S. W. 854.
The majority opinions in this case hold that the action of the court in submitting whether appellant Norton’s negligence was the “direct cause”'of appellee’s injuries was more favorable to appellants than the submission of a proper issue of proximate cause would have been, and that appellants’ objection tS such submission was therefore without merit. The effect of such holding is to deny appellants the right to require as a condition precedent to liability herein, a finding of the jury that appellee’s injuries ought to have been reasonably anticipated as a result of permitting the boomer handle to protrude from the side of the truck.
In all the cases cited in the original opinion, the question under consideration seems to have been causal connection, rather than anticipation of resulting injury.
The jury found that several acts on the part of appellant Norton’s employees constituted negligence. In each instance the court submitted whether such negligent act was the •‘direct cause” of appellee’s injuries and like objection to such submission was made by appellants. The above discussion is therefore applicable in each such instance.
This case should, in the opinion of the writer, be reversed and remanded on appellants’ .second assignment of error.