On Motion for Rehearing.
Appellant complains that, in discussing their assignment to the order sustaining plaintiff’s special exception to defendant’s plea of contributory negligence of Le Roy Price, who accompanied plaintiff at the time of the accident, we omitted some of the material allegations of that plea. The substance of those allegations were that immediately after plaintiff stopped his car “Le Roy Price, a colored man who was the servant and employee of plaintiff,” got out of plaintiff’s truck and, after discovering that the truck was not entirely off the pavement and was therefore in danger of being struck by a passing vehicle, negligently failed to notify plaintiff, and that he was in position to see defendant’s truck approaching and was guilty of negligence in failing to warn the driver of defendant’s truck of the dangerous position of plaintiff’s truck. However, there was no allegation that it was within the scope of the duties of Price, as plaintiff’s employee, to give such warning to him or to the other vehicles approaching. Furthermore, the evidence showed without contradiction that Price was employed merely as plaintiff’s helper; and, at the time of the accident, in obedience to plaintiff’s instructions, was engaged in switching on another gas tank, and therefore was not in position to give warning to approaching vehicles; also that plaintiff was himself the driver of his truck, and as soon as it was stopped he discovered its exact position-and all the dangers, if any, incident thereto which could have been 'acquired through Price as his employee. It therefore appears that the error, if any, in sustaining the exception to that pleading, was merely an irregularity resulting in no harm to defendant, and therefore shows no ground for reversal. 3 Tex.Jur. § 878, p. 1254.
It is earnestly insisted that the conclusion reached on original hearing, to the effect that the court did not err in failing to include in the definition of proximate cause the- element of new and independent cause, is in conflict with the opinion of Judge Critz in Phœnix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.(2d) 60, 61. In the first place, the positions of parties in that case were the reverse of positions of parties in this, in that the driver of the parked truck was the defendant, while in this case he was plaintiff. In that case the court failed to give any instruction on proximate cause. We quote the following from the opinion :
“When we come to examine the record in this case, we find that there is evidence therein tending to show that this truck was forced to stop and park on account of a flat tire; that this accident occurred in the night while the truck was parked on the side of the road; that at the point where the truck was parked the road was straight for a quarter of a mile in one direction, and a half mile in the other; that the truck was so parked that there was ample room for other vehicles to pass, and. many such did pass going in both directions ; that at the time this collision occurred this truck had two rear and two front lights burning; that at a point of *1256from one hundred to two hundred feet from this truck Tips passed another car going in the opposite direction with its lights burning; that Tips was traveling about 35 miles an hour when he passed the other car; that in passing the other car at the rate of 35 miles per hour he was violating the law as it then existed (the legal rate of speed in passing another car was then 15 miles per hour) ; that the lights of the other car might have had a tendency to impair Tips’ vision; that just a few seconds after passing the other car Tips’ car collided with this truck with resultant injuries to himself and his car. * * *
“We think a mere statement of the rules of law involved in the question of proximate cause as applied to the evidence we have detailed demonstrates that the trial court should have stayed in the beaten path in submitting the issue of proximate cause. This is evident because had he done so the defendant could have requested a charge or charges defining the term. As it was he was denied this right.
“Also the evidence we have detailed shows that in defining ‘proximate cause’ it would have been necessary to use the phrase ‘new and independent cause,’ or a phrase of similar import, and this being true, defendant would have been entitled to a charge defining ‘new and independent cause.’ He was deprived of this by the way the case was submitted. New and independent cause was in the case because of the circumstance of Tips passing the other car just before the collision with the events attendant upon such passing.
“Also the question of whether the Refining Company ought to have foreseen the accident and its resultant injuries was raised by the evidence in this record. The charge as submitted was calculated to eliminate such question.”
Apparently, the passing of the other car by plaintiff Tips at a- negligent rate of speed was what the court held to be a new and independent cause, which the jury might have found was not foreseeable by the defendant in that case. That was manifestly correct, since, as a general rule, one is not in duty bound to foresee that another probably may do a negligent act.
In the case at bar, the contention is made that the blinding of defendant’s truck driver by the headlights of an approaching vehicle was sufficient to constitute a new and independent cause and requiring the inclusion of that term in the definition of proximate 'cause.
In the first place, the defendant’s, objection to the charge was insufficient ⅛ failing to point out-the particular fact relied on as showing a new and independent cause. Following is the objection: “The defendant excepts to the Court’s definition of ‘proximate cause’ because it is vague and indefinite and does not instruct the jury that there must be a continuous sequence between the cause and the effect, and that there must be no intervention of any new and independent cause. The defendant further excepts to the definition becatxse the Court has failed to define the term ‘moving and efficient cause’ as used in the language of the Court defining ‘proximate cause.’ ”
As pointed out in our original opinion, the law requires headlights on cars traveling at night; and blinding of vision therefrom must necessarily be anticipated in the regular course of travel. At all events, the blinding of the driver of defendant’s truck by the headlights of the approaching vehicle could not be a new and independent cause of his negligence in failing to slow down his speed when he saw the car approaching, as found by the jury, nor of his negligence after he had passed those lights as the jury further found.
And in this connection we deem it not improper to suggest that, if the evidence is such as to require a finding by the jury as to whether or not there was a new and independent cause intervening between the defendant’s negligence and the injury complained of, then a better practice would be to point out the particular event relied on to show a new and independent cause in separate special issues, with an instruction to the jury to find whether or not it occurred, and, if so, whether or not it constituted a new and independent cause which should have been foreseen by a person of ordinary diligence in the position of defendant or his agent in charge, rather than leave the jury to determine at their discretion just which of the intervening events constituted a new and independent cause and. leaving the court to surmise as to their ■ finding on that issue.
Motion for rehearing is overruled.