On Motion for Rehearing.
After more thorough consideration, and an exhaustive study of the motion for rehearing, we have concluded that we were in error, in the original disposition of this cause, in approving of the trial court’s definition of “proximate cause,” as applied to the facts of this case. That definition was as follows: “Proximate cause is that act or omission, which in a logical sequence unbroken by any new and independent cause produces some event or injury, and but for which such event or injury would not have occurred.”
Appellant duly objected to this definition upon the ground that it did not include the element of foreseeableness, or reasonable anticipation, and requested a special charge embracing that element, which the trial court refused. The question was carefully and definitely raised and properly preserved below by appellant, and is ably and vigorously presented here.
The question appears to be no longer open in this state, the courts now universally holding that foreseeableness is an essential element of proximate cause in personal injury actions, and must be expressly included in the definition of proximate cause in such actions. Speer’s Law of Special Issues, § 80; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Seale v. Gulf, C. & S. F. Ry. Co., 65 Tex. 274, 57 Am.Rep. 602; St. Louis, S. F. & T. Ry. Co. v. Green (Tex.Com.App.) 37 S.W. (2d) 123; Paris & G. N. Ry. Co. v. Stafford (Tex.Com.App.) 53 S.W. (2d) 1019; Enterprise Co. v. Alexander (Tex.Civ.App.) 6 S.W. (2d) 423; Texas Utilities Co. v. West (Tex.Civ.App.) 59 S.W.(2d) 459; Union Stockyards v. Peeler (Tex.Com.App.) 37 S.W.(2d) 126; Hutton v. Burkett (Tex.Civ.App. writ ref.) 18 S.W. (2d) 740; Butler v. Herring (Tex.Civ. App.) 34 S.W. (2d) 307; Turner v. Stoker (Tex.Civ.App. writ ref.) 289 S.W. 190.
Definitions of “proximate cause,” which omit the element of foreseeableness, such as that given in the court below, and complained of in this case, seem never to have been finally approved in this state, as against the objection as here raised. On the other hand, definitions identical in substance and effect with that given in the court below in this case have been expressly condemned, because of the omission of the element of fore-seeableness or anticipation, in the following cases cited above: St. Louis, S. F. & T. Ry. Co. v. Green; Hutton v. Burkett; Butler v. Herring; Enterprise Co. v. Alexander; Turner v. Stoker.
In their presentation of this case ap-pellees relied, primarily, upon the case of San Antonio & A. P. Ry. Co. v. Behne (Tex.Com.App.) 231 S.W. 354, and, secondarily, upon the case of Seale v. Gulf, C. & S. F. Ry. Co., 65 Tex. 274, 57 Am.Rep. 602, and Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 164, which were cited by the Commission of Appeals in the Behne Case.
Upon proper analysis, the Behne Case is not deemed authoritative, while the Seale and Bigham Cases appear to be against, rather than in support of, appel-lees’ contentions. In the first place, it is observed that the very definition of “proximate cause” given by the trial judge in the Behne Case, and approved by the Commission of Appeals, expressly included foreseeableness as a necessary element of proximate cause. (Tex.Civ.App.) 198 S. W. 680. It is true that in the opinion in the Behne Case it was argued that “probable and natural result” — or “logical sequence” as used in the definition in this case — meant the same as reasonable fore-seeableness, and that the inclusion of the one encompassed the other in a definition of proximate cause. But-this statement, as well as the interesting elaboration thereof in that opinion, seems to have been quite beside the decisive question in the case, and was therefore apparently dictum, and not authoritative. The language, or dictum, used in that particular does not appear to have been followed or approved in any authoritative case which has come to our attention.
Moreover, the very authorities (Seale and Bigham Cases) cited in support of the dictum in the Behne Case, do not, in our opinion after thorough analysis, support the assertion in the latter case that the phrase, “natural and probable result,” means the same thing as foreseeableness, or reasonable anticipation. On the contrary, it seems that by necessary implication from expressions frequently used in the Seale and Bigham Cases, the holdings there are against the dictum of the Behne Case. It was said by Chief Justice Gaines in the Bigham Case, for instance that-“the question of probable cause ought to depend upon *273the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result.” (Italics ours.) In the Seale Case Chief Justice Willie said, that (italics ours) : “When a defendant has violated a duty imposed upon him by the common law, he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct; and that the liability extends to such injuries as might reasonably have been anticipated, under ordinary circumstances, as the natural and probable result of the wrongful act.” And again, after citing other cases: “In each case the new agencies contributing to the injury were such as would reasonably arise, and should have been anticipated by the parties committing the original wrongful act.” We think the effect of the quoted language of Chief Justice Willie is that, under the rule of proximate cause, the liability of the wrongdoer for injury to another depends upon two distinct contingencies: First, upon whether the injury was a natural and probable result of the wrongful act; and, second, whether such injury might reasonably have been foreseen, or anticipated, under ordinary circumstances, as such natural and probable result. It is to be assumed that if such a profound scholar and jurist as Chief Justice Willie had regarded natural and probable result on the one hand, and reasonable anticipation on the other, as meaning one and the same thing in law, he would not have committed the tautological error of naming the two identical elements separately, and linking them to-, gether by the conjunction “and.” He would not have said an object is “white” and “white.”
The same may be said of Chief Justice Gaines in the Bigham Case. He quotes, with approval, the definition of “proximate cause" given by the Supreme Court of the United States, as follows (italics ours) : “But it is generally held that, in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256. And Chief Justice Gaines added that: “This is probably as accurate a statement of the doctrine as can be given, and is substantially that generally laid down by the authorities. * * * It follows that, in-our opinion, the question of probable cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result.”
In view of the high authorities cited, and of the uniformity of the holding that it is reversible error for a trial court to omit the element of anticipation, or foreseeability, from a definition of proximate cause in cases of this character, we have no other recourse or desire than to follow the decisions of our highest courts and declare the error in this case, and reverse the judgment.
It should be added here that there is serious doubt among some members of this court as to whether the record shows contributory negligence upon the part of the decedent, as well as upon the questionsk of findings relating to the alleged wilful blocking of the highway by appellant. In view of another trial, however, those questions should and will be left open, without further discussion here.
Because of the error in the definition of proximate cause, appellant’s motion for rehearing .must be granted, and the judgment of the trial court reversed and the cause remanded, and it is so ordered.