On Rehearing.
PRICE, Chief Justice.We have given careful and painstaking attention to the able motion of ap-pellee for a rehearing, and still adhere to the views expressed in the original opinion. In view of the fact that while beyond any question it was stated in the jury room in substance that there was no law regulating the speed of trains under the circumstances; that trains went through Pecos and other towns at a. high rate of speed, however the testimony of all the jurors was not precisely the same. The construction was for the trial court. In deference to its ruling we must adopt the most favorable construction which supports the action taken in overruling the motion for a new trial. If this standard be adopted it is still our view that harmful misconduct was disclosed.-
In our opinion there is an error apparent from the face of the record that requires the reversal of this case even though same be unassigned -by appellant. In response to issues No. 1 and 2 the jury found that on the occasion in question the train was operated at a speed of SS m.p.h. and the operation of the train at such rate of speed did not constitute negligence. Special Issue No. 3 was as follows:
“Do you find from a preponderance of the evidence that the rate of speed at which defendant’s train was being operated at the time of and immediately prior to the collision in question was. the proximate cause of the fatal injuries to deceased Mildred Stuart and deceased James Webster Legg?”
The jury answered this issue in the affirmative. The court defined proximate cause as follows:
“By the phrase ‘proximate cause’ as that expression is used in this charge, is meant that cause, which in a natural and continuous sequence, produces an event, without which the event would not have occurred; and, in order to’ be the proximate cause of an event, it must be reasonably foreseeable that such event, or some similar event, is likely to result from such cause. There may be more than one proximate cause of an event.”
Construing findings 1, 2 and 3 together, in substance we think established as a fact that it was not negligence to operate the train at 55 m.p.h. on the occasion in question; further that it was reasonably foreseeable by the employees of defendant operating the train at that rate of speed that the collision in question would occur, or some similar accident. A judgment for the defendant under these findings implies that it was not negligence to operate a train at a rate of speed from which it could be reasonably anticipated that .there might be a collision between the tfain and an automobile using the streets of Pecos or a similar calamitous event.
Implicit in attributing the quality of negligence to an act or omission is the notice of or a duty to know of its harmful tendency. 38 Am.Jur. p. 667, par. 24; Seale v. Gulf C. & S. F. Ry. Co., 65 Tex. 274, 57 Am.Rep. 602; City of Dallas v. Maxwell, Tex.Com.App. 248 S.W. 667, 27 A.L.R. 927, Opinion adopted.
There is no just criticism to be levelled at the court’s -definition of “proximate cause”. Included in this definition is foreseeability of probable consequence of the action in question. The finding that the rate of speed was the proximate cause of the collision comprehends and includes under the definition given a ‘finding that the collision was reasonably foreseeable from the rate of speed in question. In truth and fact the answers to special issues No. 2 and 3 are in -conflict. The consequence of such a conflict is that there is no finding. 41 Tex.Jur. 1226, par. 361; Tex.Jur. Í0 year Sup. Vol. 9, page 383, par. 361.
The verdict should not have been received and judgment for the defendant was not justified and supported by the verdict. It is thought that under the case of Ramsay v. Dunlop, Tex.Sup., 205 S.W.2d 979 it *264is the duty of this court to consider the error although same is unassigned. In view of the fact that the reversal of this case is placed on an additional ground it is ordered that appellee have full time for filing a second motion for rehearing.