*1 by judg- lease, if this is done Company only, Company which-names ment leases the other o-wners under royalty roy- had such wili this unitized block practical land, all alty in this interest destroyed without purposes, off and cut day in
having-had their court.!’
Certainly, it cannot he contended virtually repre- were
original subdividers defendants, nor
sented "either named defendants, that matter. intervening hold that the court We trial abused it,by holding
discretion law in vested representative
the named defendants persons affected classes
suit. stated, ap- judgment
For reason
pealed cause re- from is reversed and
manded..
KUEMMEL VRADENBURG.
No. 12215. Appeals
Court of Civil Texas. Antonio. San April 18, 1951.
Concurring Opinion May 1951.
Rehearing May 23, Denied
POPE, Justice. on a appeal judgment This is an jury negli- convicting verdict defendant proxi- gence arising out of a head mately racing “hot-rod” car by a plaintiff, which ran who was into the minor spectator a car race. appeal points following : concerns the (1) Was there evidence and sufficient finding support evidence to failing to negligent in the defendant was reasonably sufficient maintain barrier spectators? strength sustaining (2) Did trial court err in exception answer and defendant’s refusing presenting issue submit an parents’ negligence as parents’ alleged cause? The answer supervise child failing permitting and in him to danger. support
(3) damage Did the evidence permitted recovery for future issue which pain physical anguish ? mental $12,000 (4) Was sum of excessive? points urged We have the other examined by appellant find are without merit. Sunday, On Easter Mr. and Mrs. son, three-year-old Vradenburg took their Gregory, Track in to Shadowland Race County, Egg Easter Bexar where both an A and “hot-rod” races Hunt occurred. “hot-rod” described as an automobile which had been assembled from a wide parts assortment of from different automo- paid Vradenburgs biles. The their admis- charge grandstand sion and entered the By stipulation watch races. defendant evidence the control over proprietor Shadowland under agreement. At intermission the rental Hunt, engaged Egg in the Easter child again afterwards, races while the progress, child left among and stood Morriss, Morriss, Camp, Boat- PatW. spectators alongside One of the the track. Lewis, Antonio, appel- San & wright racing cars then left the track and struck lant. specta- plaintiff minor who Dotson, protecting Dibrell, F. of a & Gard- tor side made Gardner Jas. Jr., posts. Brown, cedar This suit Brewer, cables and ner, G. Mat- two Clinton only, minor thews, Antonio, brought San he recov- & Nowlin MacFarlane, $12,000 on a verdict. appellee. ered
«71 proximity track, especially Appellant has the case on ous briefed has held the where theory that trial court there are who cannot the con- negligent per grandstand.” On accommodated in defendant se. *3 evidence, trary, supported by the there State, App.Div. 253, Arnold v. 148 N. neg- finding a that the defendant 479, 483, Y.S. states the rule to be that: failing a barrier ligent in to maintain required special “Reasonable care con- strength. Defendant reasonably sufficient provide- struction to safety those by maintaining the to undertook show invited public the state to customarily had dis- used he class of fence * * * provided by entertainment itself. duty. Much of the evidence charged his “If a race cannot be in- held without upon inquiry cus- whether the centered herent limb, and extreme risk to life and maintained, tomary fence of the command law that it must De- against the defendant. decided not be held at all. proof, lost the case on the facts fendant greatest “The and most obvious source rather finding than of danger nonprotected from a track was per reason of se. guarded against except by flimsy spectators duty invited The toward fence, which powerful could not resist a vary particu may with the of amusements car, with momentum, tremendous in case sport, lar but in instance of an automo track, it left the which the commissioners race, rule is summarized in 1 bile knew, or should have known was liable and Blashfield, Cyclopedia of Automobile and * * * likely even happen. to Practice, 763, as follows: § “I hold the state liable holding or proprietor promoter an “The or auto- permitting to be held ground, on its own un- mobile race held as amusement enter- an der the circumstances disclosed the evi- prise duty ordinary owes the care to dence, race, powerful cars, a fast protect spectators lawfully present from in- unprotected on an track, without the ex- jury. ercise of provide reasonable care to against proper degree constitute the shall “W'hat accidents well likely hap- known to be to upon sur- depends pen.” the circumstances of care particular rounding the race. Accord, Virginia State Fair Association example, a state at a race held “For Burton, 182 Va. S.E.2d track, circular in which was fair Vehicles, C.J.S., Motor form, spectators on the sides where applied charge substantially only by flimsy wood- protected track were duty above standard of toward invitees speed the machines fence, and the en finding not of rea that the track, it leave the to make them tended sonably strength to sufficient permit negligence to held to be has been spectators supported by the evidence. of mile a driven in excess to be cars appellee parents, upon his child with minute. Shadowland, at at first arrival went to main- “However, person or association grandstand. the last While race was races taining premises on which automobile progress they left the in order enterprise, amusement as an are conducted to The child avoid crowd. walked a' or the state fair or as an attraction his few feet ahead of all duty like, to exercise to invitees owes stopped near the barrier to watch the races. premises ordinary to see that care They among spectators stood obligation This continues safe. spectator got beyond never side of the independent fact that con- despite the testimony varied, protecting barrier. The produce employed to races. tractor witness stated the child’shands but one touching the The other or like were barrier. association there- testi “A fair placed mony away negligent the child from bar failing to be be found fore races, warnings safety giv During or were barriers zones to rier. provide suitable spectators away spectators coming stay from prevent danger- en oo ba:- my barrier, spectators'did not move frotfl fáther “about size of ‘said Was ' finger.” little proceeded. The Another witness estimated
the barrier the races be three-eighths whom the inch cable. child cable never ceased invitee ' Ample duty belong evidence existed show was owed. Automobilfes customary barrier fell alongside below the’ standards. parked speeding “hot-r'ods” barrier. of the' One Moreover, .that the all evidence shows pro shaped racing track and left the oval barrier had two strands of anchored cable twenty- twenty approximately ceeded posts set in concrete. witness stat- One space track five feet between across top ed high strand was chest *4 barrier, barrier, collided struck the bottom strand was ankle and high sagging. specta on parked with: the the automobiles' witness top Another said the strand was fence, appellee hit tor side the of-the1 ahd high shoulder the other and was six inches causing injuries. head severe yvitness from ground. Still said another the. top the strand high was chest and. bot- the proof 'in this'case shows that of-the tom strand was "three ground. feet off the protective barriers custo- three -classes of tóp Another witness said the cable was four tracks, post marily racing used such the at -ground feet the from and the’bottom cable and and' cable is considered 'the best fence eighteen was sixteen or inches from the at that such-a fence was in use Shadowland ground. Another top witness- said the when the accident occurred. thirty-six cable was high inches the and agree jury the is not "we with "Whether twenty-four bottom was one inches:- Still was us.' Whether there issue before the another top fifty said the cable inches was -support jury’i finding of to the evidence thq and eighteen other was inches from the provide failing- barrier to a ground.- expressed Other witnesses differ- protect strength reasonably' of sufficient ent views. Photographs-of the fence at the Appellant; spectators issue. is the the place-of the accident that showed the ar- Kuemmel, purpose the of the testified that rangement of the cables was and visible protect both barrier whs to apparent. by pushing drivers a the “-hot-rod” and aRo arrangement and of condition The. the track. Four back on vehicle matter, pass up- the. fence a was -purpose -that qualified -the witnesses testified to,, answering on .the its as. car So to deflect barrier of the was. ex- Strength viewed in connection with the through not come fence-into would pur- pert testimony of how it was strong - expert who had been spectators. An prove was posed be. Custom used year prior tracks the “hot-rod” ISOdifferent quality of of both-the class fence customary the" stated that accident used these races. that class fence of of the construction size cable used customary of class Shadowland - “three-quarter inch to one was up fence,, quality fell the custo- its below but He also quarter inch” stated cable. mary class, according of the standard one- .inch five-eighths cáble. jury finding. than usual. These facts eighth "inchsmaller , customarily Conformity cable the uniform -cus the size of with tend to show tom, fraternity persons engaged in a racing like business required the “hot-rod” may. proper car instead of be considered evidence spectators. The as care, preclude on contact with this does a show stopped or deflected being according ing negligent itself barrier, to some custom wit- White, cable, Taylor posts, Tex.Com.App., nesses, custom. sheared broke 656; beyond Trinity through Valley cables & Brazos R. .and came on S.W. McDonald, Appellant Tex.Com.App., Him- crowd. Co. v. S.W. the fence into'the only is not the case five-eighths inch 912. That before us. The said cable self found, customary jury supported'by evidence, below here cable, fhat which has. expert nonconformity called’as his wit- there was by" set standard precaution customary’ said used "at witness it was “hot-rod” Another ness. cable, conformity races. the child’s as half-inch" custom than less 'Just .that, ex- noncon .“in freedom evidence been, negli ordinary have reason- ercise of care presence formity may evidence ably ordinary care Bell, foreseen Tex.Com. person Co. v. Diggs gence. Hubb prudence Negli attending Am.Jur., light 575; 30 App., 1 S.W.2d circumstances.” Negligence, C.J.S., § gence, § 6S Tex.Jur., Negligence, foreseeability This element al necessarily so the defini included within properly court We also believe the tion negligence. person can a How fail urg exception' to the answer sustained produced to do an act an injury which' parents’ negligence as the ,ordinary would “in the exercise injury.' is not proximate cause of the care foreseen exception for urged ruling on the person ordinary prudence in the care any, evidence bade introduction circumstances,” light attending without position the child’s the barrier nor near degree failing same time use that “to leading up approach to his. circumstances ’ person prudence ordinary care that a barrier... It .to conceded under,.the *5 would use cir same similar parents’ negligence: imputable is not person ordinary aIf of defense, care cumstances?” proximate of sole child. cause prudence reasonably and have fore could. issue, a rebuttal con is rebuts the since injury the, ordinary of exercise seen .in proxi tention act'Was .defendant’s care, person do or fail do cannpt -cause, injuries of the Sole mate proximate sustained. something which result and still -vvillso submitted in cause was connec .ordinary prudent. say and .To tion with another matter not here in dis ordinary prudent,man may do thing which pute. The definition that term and the resulted in the he should have fore injury usually employed other terms wére those in ordinary prudent para as an is a man charge objections and seen no were made This is a of dox. serious indictment definitions. prudent ordinary We think he would man.. Negligence was as failure to defined probably refuse do that foresees which he degree person use that of care that a of or- will,result tragedy. person A ordi prudence dinary would use same under the prudence nary person, cannot be careful or similar circumstances. yet free and .fail to exer Proximate cause defined as “act an ordinary care an in results which cise which, or omission ain natural contin- by person such as could be foreseen sequence uous -of events unbroken ordinary prudence. care and It becomes intervening cause,' produces new an apparent that foreseeability element event, and without which the event proximate definition of sole cause occurred; , not have and in con- order to negligence is in fact. The parents’ failure proximate stitute event, cause'of an as that supervise the child not have been herein, term is used the act or omission the sole cause child’s in complained of particu- must be such that the jury unless the could have foreseen injury of, complained lar or some similar would result to the child. If injury, might which there- probably result they injury, could have foreseen then from, would, m the exercise ordinary negligent, and the effect of invoking care, have aby the doctrine foreseen cause is to person ordinary prudence care and in impute to the child contrary light attending circumstances.” to the rule of law. substantive n Weomit the portion relating to new “foreseeability” The use as a working intervening cause. law, formula causation is settled al- cause, Sole was defined as the is though illogical concept. admitted only proximate By definition, adopted cause. “sole It was arewe. committed to proximate cause” contains the element of law settled in order to “avoid as far ' foreseeability, finding A proxi- of' “sole possible metaphysical philo- mate compels cause” a finding sophical 'that the in- niceties in age-old discussion correct Maxwell, objected to or sue was v. City Dallas causation.” appeal. urged 670, A.L. ness of the submission Tex.Com.App., 248 S.W. Thetford, Co. v. Texas Traction in Northern abandoned Confessedly, logic R. Tex. 906, reversed Tex.Civ.App., 28 S.W.2d gen practical rule more favor of a 902; Southwestern Com.App., S.W.2d very well. erally serves Doell, Tex.Civ.App., Telephone Co. v. Bell negli- parent’s case where is a But this Haner, Tex.Civ. Ross parent’s imputed. The may not be gence 231; Id., Com.App., 258 App., 244 Tex. S.W. prudent ordinary as an behave failure S.W. 1036. not a foresight, including his person, substantive inquiry because matter up directly passed This matter was negligence to imputation prohibits law on in the case of Re Terrell Wells Health child. an unreliant Severeid, Tex.Civ.App., sort v. and the issue control, of sole foresee- is to then pure logic If rejected in a case such as this was If at all. ability causation has no improper. held The court there held get should in ex- to control we logic is not imputation of the issue amounted to the simple rule. logic workable change for depart negligence. no reason to We see inquire, in a case where But when we Accord, from the rule as there announced. imputable, parent’s wheth- Kelley Ry. Co., v. Texas & P. foreseen er could havé that same 349; Galveston, Ry. S.W. H. & H. prudent person, ordinary we the result as Moore, 59 Tex. Restatement impose the while element Torts, 449, 452 *6 foreseeability vowing §§ it is excused. The simplify. to When used rule was a device damage is Nor do we think Neg- complicates and confuses. case recovery permitted for future sue which defense, yet by defini- and ligence is not a improperly pain anguish and mental jury by to the tion it would be submitted uncertainty any reason submitted pseudonym. a indirection Such under a witness, testimony. A medical the medical invitation to im- submission is to a to qualified, described a fracture completely pute act to the child sub-standard depressed plaintiff’s head as a fracture very thing the omission of the —the surgery for necessitated the skull which prohibits. parent’s negligence law That of bone and dirt from the brain. removal imputed to would thus not be the child op days third after the On second and and be reduced to hollow ineffective rule. eration, spastic, rigid the child became and Having philosophical avoided the nice- making breathing diffi his movements pure causation, are relating ties to we now stop point entirely breathing At one cult. metaphysical faced with the niceties relat- trial, ped. late as the time of the As which is defined in- foreseeability hemorrhaged His plaintiff at the nose. still to sole causation. kind, a case- of this memory bad coordinatio was and his submission, causation, defined of sole permanent poor. injury resulted in foreseeability on include brain, which, according scar tissue on the person, ordinary prudent is a con- expert, likely people “is require foreseeableness in the To fusion. epileptic convulsions or fits.” The have prohibited imputed ease where has held to likely been be sufficient to word again overtakes that confusion means certainty required measure of give that When this practicable occurs, rule. Fordyce Moore, damage. v. Tex. future simple, practicable to be rule ceases 22 Civ.App., S.W. 235. We that con hold disregard logic fur- .exists reason no epileptic seizures dis are not vulsions ther. pain and anguish mental sociated which, evidence, under the cited to some cases in conditions are We which, probably injury. result the brain failures submitted parents’ will Enloe, Railway & Terminal Co. v. An examination Dallas proximate cause. as sole 431; Tex.Civ.App., 225 Mercer to reveal that such is- S.W.2d v. cases fails those
875 206; Evans, Civ.App., 173 S.W.2d Tex. The rule with reference to the defense Sadler, Tex.Civ.App., 55 Harris S.W. sole v. stated Mr. cause well 2d “The 173. The doctor also testified: Associate Norvell in Heard & Justice up Heard, most likely Kuhnert, result he end Tex.Civ.App., would Inc. v. 155 spasticity. 817, A 820, be a condition of recur S.W.2d as follows: thing rence of the had soon after same he “It is well upon a trial settled that injury.” that a testimony That means case, merits of when the spasticity condition of similar to that oc evidence is findings sufficientto sustain likely, curring soon after the sole plaintiff’s in cause of superlative degree, It does reoccur. juries was the party, action of a third occur, necessarily not mean that will upon proper request trial court must sub probability rule of reasonable and mit said issue of sole cause to the certainty require medical does not exact jury. House, Horton & Horton v. Tex. prophecy. For these reasons and the facts Com.App., 984, holdings ap S.W.2d point, stated in with this we connection proved by Supreme Court; Schumacher point point shall overrule as well as the Shooter, v. 560, [Co.] Tex. S.W. damages are excessive. 2d Jakovich, Parker judgment is affirmed. Rives, Collier v. Tex.Civ. App., ; 1122, S.W.2d 830 41 Tex.Jur. MURRAY, W. (dis- O. Chief Justice senting) . September “Prior to this issue I opinion am unable concur in the gen was available to the defendant under majority. Appellant, by the third Shooter, eral Schumacher denial. [Co.] paragraphs answer, plead fourth of his the supra. (See R.C.P.) Rule permitting finding “A defendant favorable three-year-old their son, Gregory Vraden- finding issue is the ma- burg, to run ahead of them and to into allegations plaintiff’s petition terial danger as the sole untrue, including allegation injuries. cause of his judge The trial sus- proximate *7 plaintiff’s injuries cause of special exceptions para- tained to these two negligence an act of attributable to the de- graphs. amendment, By appellant trial House, Horton fendant. & Horton v. su- plead the parents act permitting the pra. three-year-old their go child to into a proximate “The issues of ‘sole cause’ place proximate danger as sole cause and the somewhat similar ‘unavoidable acci injuries, of his whether the act was one of go dent’ to the rebuttal or destruction of part parents negligence on the of the or plaintiff’s cause action and not mere trial amendment The was also strick- not. ly to liability. plain avoidance The special by sustaining en out ex- negative tiff must their existence. Such ception to it. clearly issues distinguishable in nature presented have Thus we in this case from the affirmative contributory defense of question clear cut of whether or not the negligence. apparent This is from the au act of or other of a child custodian thorities above cited. As to contributory permitting go place it to into a of dan Rook, see Koons v. Tex.Com. plead proximate ger ever as a be sole App., 592, ; 295 S.W. 597 811, 30 Tex.Jur. to such child. cause of Cable, Martin v. § proximate alleged to be sole act cause S.W.2d 894.” negligent not be a act. Dallas need Rail Guthrie, contended, way however, & Terminal It Tex.Civ. permit that to App., appellant reversed on other in this case to raise the issue n ofsole grounds, Tex. cause would be in effect Brown, permit impute Hicks v. Tex. 151 S.W. to him to parents three-year-old 2d their child. negligence the hot rods in this State is that back onto the-race course. The rule imputed thirty-five away to barrier parents to be fence was set feet is never thus; yet course, from arrived creating has not an area infant who their child thirty-five specta be feet wide- .age at where he can- between the discretion safety. tors "and For expected after his own race course. The race course to look parents track, shaped was a of a .negligence of the mile oval this -reason the S/8 n into,a speed races run at maximum permitting a child fifty-five contributory plead eighty- as on the turn danger miles is never per five miles straightway. the infant hour recovery to bar. on the solely There for his was also child in own evidence' the -barrier a suit instituted fence did not break the lower cable benefit. caught' the wheel of the- hot rod and the However, rebutting sole issue of' hot- rod came to rest with it9 front wheel impute negli- cause does not against the lower steel cable. If this evi 'parents gence infant child of' the dence'had jury believed responsible therefor, thereby and hold him easily appellee have concluded recovery, barfing his but it rather has injuries received his without rebutting destroying effect of the cause appellant, -and this> would plaintiff. we action asserted Here brought them to the conclusion question proof do not be- come to the .proximate appellee’s the. cause-of in judge cause the trial as a matter of law juries was the failure of his exceptions, allegations sustained both the properly, supervise taking and- their him his, of defendant’s answer and to trial . . him from a safety zone of -o-f a zone .yeas, amendment, he never and therefore , (cid:127) ..danger... . to, given opportunity, pr.oof upon offer ;found question ,. of sole cause. true that appe'l- guilty larit-was negligence,. pass but in However, evidence there was introduced ing upon question of whether or not had the effect of rais trial which during the appellant -right plead is proximate cause. question of sole ing the sue of'-sol’e and have determining or not the whether the-jury, submitted to we must view the sit look at the was raised we evidence .must as existed charge before the uation appellant. light, in a most favorable t<? to the' read and before the answers appellant main shows The evidence jury were :of.the returned.- The conditions the Shadowland tained .they before, after, existed the ver spectators could Race Track from dict must 1117, 280; control. 41 safety. of this In front Tex.Jur. races view the *8 Corder, Adams v. Tex.Civ.App., 205 S.W.2d supported fence cyclone was a 608; Montgomery Gay, Tex.Civ.App., there no conten by cables, and is two steel 1 . 212 S.W.2d 94 any danger of of was one tion that there going racing through denying appellant this In plead automobiles right these the playground He'mairitained and offer evidence cyclone raising fence. the -issue of sole proximate tvhere grandstand' children in back of the cause .he was denied a valuable - safety.1 There right, doing in were contin and in kept court, my could be so the in opinion, speaker the loud over announcements committed -reversible error. In uous danger Telephone it Doell, that was the- Southwestern Bell advising Co. v. Tex.Civ.App., 501, 506, six-year- fence and that S.W.2d near the barrier to stand ous injured away boy was keep back from it. The old while riding must in an composed by driven of two automobile his was steel older brother fence al upon posts leged contributórily to have been set in con strung negligent cables cedar driving .testimony in at an expert .speed the excessive rate of was crete by type, held-by was the best fence a4truck. that this when struck the effect ’spectators protecting Appeals purpose of the Worth-Court Civil for Fort negligence driver, any, of the hot rods because drivers if arid imputable tendency give spring not the child. The Court it would have a said: (cid:127) facts, The that, strongly indicated that under-the above case “We do not think other, negligence parent any, of the Ford the custod- negligence, if of the driver plaintiff, un- ian of a sedan, imputed permitting child in into be to -the him to should a; place proximate .plead ‘sole cause’ o.f be less it was cannot dangqr, which then, .course, as-contributory-negligence neg- im-- injury; it not be would because can'neyer ligence imputed . putable.” .. . be child, to the may plead -be nevertheless .as- S3, the paragraph In 29 Tex.Jur. proximate sole I nd cause. have found au- con- “Where following statement found: ’ thority , holding -contrary. ' case tributory negligence is out the" opinion thp majority c.ase Terrell by cited, statutory provisions reason of the Severeid, We lls Health Tex. Resort pleading proof own servant's that-the Civ.App., as au cited próximate- act was the cause of the sole thority for proposition the, act or defense, good injury constitutes á since the or, ijqgligence, custodian of by allegations injury caused' an .infant child cannot.be relied ,to negligence negatived.” master’s be sole cause. It is the case true Chicago, P., In Fox v. M. & O. R. St. hold, so only given but reason does Co., Supreme Minnesota, Court of holding negligence par is that the aof 845, 847, 121 Minn. 141 N.W. the.'Court qr ent custpdian imputed cannot be to the course, said: “Of if negli the father was infant, indubitably the law. The is. gent/and negligence his was the sole cause court, have, entirely seemed- to overlooked injury, (cid:127)of there be no’room the fact that in the negligence of Reading liability on of defendant. No such as,so-le the.custodian you cause presented situation is here.” impute .attempting to the negligence In Northern Texas v. Thet the parent, or, Traction the.infant, custodian to ford, 906, 910, Tex.Civ.App., 28 rebutting the cause of action simply al7 ’ Court “In leged by said: this we will .plaintiff. connection- in .Court its that, the-jury opinion note while found Mrs. Thet^ previously :had reversed the cause ford,, -car, what, grounds driver t-he to have been said negligent attempting past to drive to the issue reference sole of. point'of collision at properly the-time in the cause very regarded as be did, was'yet manner -in obiter which she found dictum,.,, that such was not Also, majority- connection,, collision, sole cause of the cites., opinion Kelley the cases of v. Texas appearing that-at most the thus Ry. Co., S.W. 349, P. & a:'concurring of the mother was'but cause Galveston, Moore, Ry. & H. H. Co. v. drivj that' of the-streetcar -case.is based en Tex. Moore er, minor operating both tirely...upon proposition, negli child who was without condi gence, imputed the mother cannot which, tion of the case if unaffected pf. proxi7 infant and no evidence, charges, erroneous objectionable mate seems to raised *9 supports proceeding, or other erroneous that-case. ... judgment below.” (cid:127) . .. complaint Kelley -was made of In the case Haner, Tex.Civ.App., by 244 S.W. Ross v. given the court to the charge certain a 231, 235, continuing speaking the Court said:1 “The charge in of jury, the court this imputing negli1 to “It in of his said: is effect plaintiff. to the not, g'ence of the This repair a matter of make the does mother quarrel I -have no cannot be law, right contract, affect his under said done.’.’ holding court. Such is conceded this unless such constituted the . be the law. to injuries. of his cause This-was my opinion judge the trial com- jury, by that a decided It is for was when he denied to appellants’ mitted reversible' error against them -contention.” 878 evidence, plead viewed and offer careful-examination of right
appellant favorably plaintiff, of most we conclude proof effect that appellee justify that the- evidence is not sufficient permitting the minor parents in jury, and safety into the submission of case to the place of to leave a correctly proximate- that district court instructed place danger, the sole of The fact injuries, that such a verdi-ct for the mere appellee’s defendant. cause not judgment slipped that Adair fell does Mrs. error calls for a reversal of the liability; there must establish the bank’s herein. way showing that some be evidence in evidence opinion that the I am also fault was a bank was- at that its fault appellant show that in this case does not injury.” keep premises the Shadow- failed to at Tex.Civ.App., Rogers Collier, See also v. reasonably in condi- Race Track safe land 560, v. Texas Pacific S.W.2d and Wells spectators. He furnished them a tion for 2, Co., & 660. Coal Oil 140 Tex. they sit with in which safety." also absolute He maintained proprietor race of an automobile kept playground in which children could be safety is track not the insurer of the safety. He*maintained barrier fence spectators pay and attend who admission thirty-five edge some feet required only rea such He-is use races. track, by expert race which was described premises sonable care to have such reason type being witnesses as the best of bar- ably spectators. v. safe for Stein rier fence known to the rac- automobile Co., Buckingham Mo.App., Realty 60 S.W. fraternity, which ing cedar consisted Law, 2d Blashfield’s Automobile Vol. posts, top, four inches in diameter 708, State, 1, part 2, p. Arnold v. concrete, apart,- upon set in twelve feet App.Div. N.Y.S. strung two steel cables undisputed The evidence-here is It an inch in thickness. is true that fence maintained at the Shadow- experts ordinarily stated that this cable type track was one best land quarters thick- should be three of an inch in usually throughout fences maintained ness, further that stated cable engaged United States others are who an inch in thickness was sufficient. managing the business of “hot-rod” is fence at the There no evidence that the people tracks. that presumed will be spot the accident occurred in a where engaged in such business reasonable repair, appellant bad state prudent persons the method used any knowledge of weakness in the premises reasonably them to make their absolutely fence. There no evidence for proper safe ais method un- strength the fence was of sufficient contrary less until the shown com- and- automobiles, rod other than the turn hot petent evidence. testimony fact that there bottom Werline, In Houston & C. R. T. cable broke at time this- accident. it was cable broke on the fact that the The mere Taylor White, “The stated: case of question is not sufficient evi- occasion 656, 657, by Ap- the Commission of appellant S.W. the fact to establish dence damages peals, in- suit recover negligence in not maintain- guilty machine; by falling juries sustained on a strength sufficient a fence of spectators. negligence alleged being the failure -evidence guard rail The court track had it. this race around show that does years; engaged custom of others ten said: ‘The some existence *10 time, during neg- test that business is not the absolute been there like fence had undisputed evidence ligence, an but where the gone -before automobile that never case, injured spectator. affirmatively, as does this shows through the fence -conducting his bus- Supreme the .defendant by the of Texas Court was said As -the cus- Adair, in accordance with uniform National Bank v. 146 iness in Houston business, persons engaged like 374, 387, 375: if 207 S.W.2d “After a tom Tex.
«79
he
upon
plaintiff,
experts
before
can fact that
devolves
some of the
testified that
recover,
produce
showing that at
evidence
some tracks no barrier
all
fences at
maintained,
To
negligent.’
question
such custom
the same
is
the first
City Teague
(Tex. should
effect see
v. Radford
submitted
was,
376;
not,
S.
Com.App.)
El Paso
whether
or
under all the 'circum-
[&
133,
stances,
Foth,
100 S.W.
appellant
R. Co. v.
101Tex.
the duty
owed
W.]
171,
322; Missouri,
maintaining
105
K. & T. R.
reasonably
S.W.
fence
Carter,
461, 484,
strength
protect
Co.
68 S.W. sufficient
v.
95 Tex.
159;
spot
Washington,
v. Mc
R. Co.
where the
occurred. The
[& G.]
Dade,
554,
1044,
135
S.Ct.
34 L.Ed.
issue submitted
appellant
U.S.
10
assumed
owed
235;
Ives,
duty
simply
this
Grand Trunk R. Co.
144 U.
v.
asked the
if
408,
679,
485;
discharged
S.
12
he
duty.
S.Ct.
36 L.Ed.
Union
Ry.
Daniels,
684,
Pac.
152
Co. v.
U.S.
14
For all of
stated,
the reasons above
I re-
756,
597;
S.Ct.
Ry.
38 L.Ed.
Canadian No.
spectfully
my
enter
opin-
dissent from the
Senske, Cir.,
8
v.
201 F.
Merton
majority.
ion
Michigan
540,
Co.,
Cent. R.
150 Wis.
767,
;
23,
137
p.
N.W.
768 20 R.C.L. §
NORVELL, Justice.
30.”
I concur in
opinion
of Mr. Justice
38,
In
Jurisprudence,
Volume
American
POPE
agree
with the reasons there-
681,
page
34, the
is
rule
stated thus:
§
in stated for affirming
judgment ap-
“The conclusion to be reached
undis- pealed
my
from. To
mind, this is
not
puted evidence which shows that
de-
proper case for the submission of the rebut-
fendant acted in accordance with the uni-
tal
issue of “sole
cause.” Con-
persons
form custom of
engaged in a like cededly the submission of this issue under
business,
any
in the absence of
evidence certain factual circumstances is sanctioned
showing that
negligent,
such custom is
by precedent
State,,
in this
but the issue rs
should be that the defendant did not act something of an anomaly and
enlarge-
negligently.”
ment of its use is not favored.
C.J.S.,
16,
Negligence,
find
we
say
prox-
be one
We
if there
“sole
following:
conformity may
“Such
even
“prox-
cause” there cannot
imate
be several
afford a sufficient
basis for
inference
and, therefore,
causes”
if
imate
some ac-
proper
exercised,
care was
tion other than that of the defendant
abe
tending
absence of
evidence
to show
cause,”
“sole
act
the de-
that the custom
did
involve reasonable
“proximate
fendant cannot'' be a
cause.”
care,
experience
or unless the common
when,
However,
legal
we consider the
ordinary, juror
him
enable
cause,”
“proximate
technical definition of
determine,
subject
without
evidence
apparent
foreseeability
becomes
conformity
whether
to the custom was suf-
person
inquired into,
e.,
wrong
i.
ficient care.”
per-
other than the defendant or
some one
also,
Appalachian
Dunagan v.
See
Power
sought
charged.
it be
If
rule
son
Co., Cir., 33 F.2d
A.L.R.
person
charged
of substantive law that
Realty Co.,
Buckingham
Mo.App.,
Stein v.
only
consequences
he
way or another. causal con act or omis
nection between defendant’s injuries sion; sustained while arid-the child’s
(cid:127) (cid:127) all, barrier, the* if' broken he Is near effectively by broken action would be suddenly -unexpectedly
of .the..child parent’s grasp .rac his breaking-.from STARNES al. v. et SUMNERS. wander ing to barrier as it his No. 6154. protec until unattended he reached ' (cid:127) Appeals Court Civil Texas. tive fence. Amarillo. is the proximate cause” issue The “sole May 21, 1951. have been appellant contends should one (cid:127) pleaded fit it does not submitted, but A case. child- is of this circumstances capable movement. When thing, animate wrong an automobile person drives road, proper under action side to be “sole be said circumstances of'a-passenger’s-injuries proximate cause” in-precedent .support- with- some logic. the rules too much out .violence.to of. -case, neglect of But in this
must, .the have concurred action to-produce injury. order Such child in cause,” neglect cannot bé “sole as, adjective “sole” is defined “be-