I concur in the view that the excerpt from the charge of the court, which is here complained of and upon which this case is reversed, is erroneous; however, I do not agree with all that is said in the opinion but prefer to state the rule in question in the following language.
What is or is not negligence is generally a question for the jury. It is always a question for the jury except where the law has designated certain specific acts as being negligence per se. In this connection, it is negligence for the driver of an automobile to fail to obey the statutory regulation of Code, § 68-303 (i), which is: "An operator shall reduce speed at crossings or intersections of highways, or bridges, or sharp curves and steep descents, and when passing any animal being led on the highway." The failure of the operator of an automobile to observe this statutory precaution is negligence per se; however, before such negligence on the part of the plaintiff precludes his recovery *Page 356 either it must be the sole proximate cause of the injury or, if concurring with the negligence of the defendant, it must be equal to or greater than the negligence of the defendant.
The proximate cause of an event is that which in a natural and continuous sequence, unbroken by any new independent cause, produced that event, and without which that event would not have occurred. What is the proximate cause of an event depends upon the facts and circumstances of each particular case. If in a given case where an independent responsible intervening cause is involved, the injury complained of can be traced directly to the wrongful act or omission attributed to the plaintiff and was such a natural and probable consequence, in the light of the attending circumstances, as that it might and ought to have been foreseen or reasonably anticipated by reason of ordinary intelligence and prudence as likely to ensue from such act or omission, and but for such act or omission it could not reasonably be supposed that the injury would have resulted, then such act or omission is to be deemed the proximate cause of the injury. On the other hand, if in a given case the injury complained of did not flow naturally and directly from the wrongful act or omission attributed to the plaintiff, or could not reasonably have been expected to result therefrom, or would not have resulted therefrom but for the interposition of some independent unforeseen cause, such wrongful act or omission would not be the proximate cause of the injury complained of. As a matter of law, in order to preclude recovery it must be made to appear, not only that the plaintiff was negligent as laid down in the pleadings, but also that such negligence resulted in, as the sole proximate cause thereof, the physical or bodily injuries and the property damage to the plaintiff such as are claimed in his petition.
But if the jury finds that on the alleged occasion in question the plaintiff, upon approaching the crossroad, failed to reduce speed as required in Code § 68-303 (i), that would be negligence per se; and if the jury should find that the plaintiff was guilty of such negligence and if they should further find that such negligence was the sole proximate cause of his injury, or that the negligence of the plaintiff concurred equally, or, if the negligence of both concurred, that the plaintiff was negligent in a greater degree than was the defendant in causing the injury to his person *Page 357 or damage to his property, the plaintiff would not be entitled to recover.
I am authorized to say that Judge Gardner agrees with me in this special concurrence.