Further, the negligence of each of them continued and existed at the time of the injury. St. Louis S.F.R. Co. v. Bell, 58 Okla. 84, 159 P. 336, 339, L.R.A. 1917A, 543; Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10, 11. The Railroad Company relies upon Stephens v. Oklahoma City Ry. Co., 28 Okla. 340, 114 P. 611, 33 L.R.A., N.S., 1007, to support its contention that the act of the mail clerk was the intervening proximate cause of Mrs. Ingram's injuries.
The Utah court, in referring to the cases relied upon by plaintiff, said: In Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10, 11, the court quoted from Chicago, R.I. P. Ry. Co. v. Nagle, 55 Okla. 235, 154 P. 667, 668, as follows: " * * * `The test of whether an act was the remote or proximate cause of the injury complained of is whether the injury was one to be anticipated.' And: `In order that an act of negligence may be deemed the proximate cause of an injury, it must be such that a person of ordinary intelligence would have foreseen that the injury was liable to be produced in the act.' * * *"
"It is our opinion that the injury could not have been foreseen nor reasonably anticipated as the probable result of Kinchen stopping his car in the street." Id. at 378 (citing Pepsi-Cola Bottling of Tulsa, Okl. v. Von Brady, Okl. 386 P.2d 993 (Okla. 1963)) The Woodward court distinguished an earlier case, Cleveland v. Stanley, 9 P.2d 10 (Okla. 1932), upon which Woodward had relied. Kinchen testified his car was moving at all times and that he tried to turn left to avoid the errant backwards driver headed toward him at a speed between 35 and 50 miles per hour.
Not only could the action of Brazile not be foreseen, but it was the sole and only cause of the collision and therefore the proximate cause. Plaintiff cites Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10, to sustain the contention that Kinchen should have foreseen that the injury to plaintiff was liable to be produced by his act of stopping in the street. The facts are not the same.
"* * * under our Constitution and a great array of authorities the question of contributory negligence is, without exception, a question to be determined by the jury. Section 6, art. 23, Constitution; Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10; Midland Valley R. Co. v. Barnes, 162 Okla. 44, 18 P.2d 1089; St. Louis S.F.R. Co. v. Hartless, 115 Okla. 38, 241 P. 482; Mascho v. Hines, 91 Okla. 295, 217 P. 856; Missouri, K. T.R. Co. v. Perino, 89 Okla. 136, 214 P. 907."
fendant, although another efficient cause concurs with defendant's negligence, applies where an Act of God is the concurring cause. Welch v. Evans Bros. Const. Co., 189 Ala. 548, 66 So. 517; Inland Power Light Co. v. Grieger, 9 Cir., 91 F.2d 811, 112 A.L.R. 1075; American Coal Co. of Alleghany County v. De Wese, 4 Cir., 30 F.2d 349; The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039; Arkansas Land Lbr. Co. v. Cook, 157 Ark. 245, 247 S.W. 1071; Blessing v. Camas Prairie R. Co., 3 Wn.2d 266, 100 P.2d 416; Sandy v. Lake Street Elevated R. Co., 235 Ill. 194, 85 N.E. 300; Atlantic Coast Line R. Co. v. Hendry, 112 Fla. 391, 150 So. 598; City of Richmond v. Cheatwood, 130 Va. 76, 107 S.E. 830; Ferebee v. Norfolk So. R. Co., 163 N.C. 351, 79 S.E. 685, 52 L.R.A., N.S., 1114; Meyer Bros. Hay Grain Co. v. National Malting Co., 124 N.J.L. 321, 11 A.2d 840; Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765; Chicago R.I. P. Ry. Co. v. McKone, 36 Okl. 41, 127 P. 488, 42 L.R.A., N.S., 709; Cleveland v. Stanley, 155 Okl. 272, 9 P.2d 10; Barlow v. North Sterling Irr.Dist., 85 Colo. 488, 277 P. 469; Ford v. Wabash R. Co., 318 Mo. 723, 300 S.W. 769; St. Louis S.W. R. Co. v. Mackey, 95 Ark. 297, 129 S.W. 78; Davis v. Union. Pac. R. Co., 99 Neb. 769, 157 N.W. 964. Where defendant's engineer had notice of the impending danger from the tornado in time to have avoided it by such means as were available and neglected to use them, such neglect was the proximate cause of the accident. Louisville N. R. Co. v. Finlay, 233 Ala. 128, 170 So. 207; Ellet v. St. Louis, K. C. N. Ry. Co., 76 Mo. 518; Louisville, N. A. C. Ry. Co. v. Thompson, 107 Ind. 442, 8 N.E. 18, 57 Am.Rep. 120; Gulf, C. S. F. Ry. Co. v. Bell, 24 Tex.Civ.App. 579, 58 S.W. 614; Hurck v. Missouri Pac. R. Co., 252 Mo. 39, 158 S.W. 581; Chicago, R.I. P. R. Co. v. Cain, 37 Tex.Civ.App. 531, 84 S.W. 682. Where the evidence introduced by plaintiff is substantial, and sufficient, if believed, to sustain a verdict in her favor, the defendant is not entitled to the gener
In the cases cited in the above quotation there is an extended discussion of this problem. In the Bell Case, cited in the quotation, the court announced the rule that where the negligence of the defendant, coupled with an act of a third person, concurred to produce the injury, and the injury would not have happened but for the existence of both, the negligence complained of is the proximate cause of the injury. See, also, Oklahoma Nat. Gas Co. v. Courtney, 182 Okla. 582, 79 P.2d 235; Texas Company v. Robb, 88 Okla. 150, 212 P. 318; Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10; St. L. S. F. Ry. Co. v. Bell, supra; City of Okmulgee v. Hemphill, supra. We deem it unnecessary to deal further with the matters raised by defendant's contention, in view of the announced principle that where several causes produce an injury, and each is an efficient cause, without which the injury would not have occurred, then the injury may be attributed to any or to all of such causes.
"The test of whether an act was the remote or proximate cause of the injury complained of is whether the injury was one to be anticipated." Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10. These definitions are amplified and explained in Cushing Gasoline Co. v. Hutchins, 93 Okla. 13, 219 P. 408, where this court said:
"The issue of contributory negligence constituted the burden of the defense in the instant case. It will not be necessary to discuss the evidence offered by defendant, for the reason that under our Constitution and a great array of authorities the question of contributory negligence is, without exception, a question to be determined by the jury. Section 6, art. 23, Constitution; Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10; Midland Valley R. Co. v. Barnes, 162 Okla. 44, 18 P.2d 1089; St. Louis S. F. R. Co. v. Hartless, 115 Okla. 38, 241 P. 482; Mascho v. Hines, 91 Okla. 295, 217 P. 856; Missouri, K. T. R. Co. v. Perino, 89 Okla. 136, 214 P. 907."
" And again, in Cleveland v. Stanley, 155 Okla. 272, 9 P.2d 10: "In order that an act of negligence may be deemed the proximate cause of an injury, it must be such that a person of ordinary intelligence would have foreseen that the injury was liable to be produced in the act.