Drawing upon the most elemental of human experiences pertaining to motor vehicle travel at night, the relationship between darkness and danger, and the relationship between light signals and safety which is so readily apparent to us, must be assumed to have been within the understanding of the jurors as reasonable men and so the special finding must be interpreted in the light of such universal knowledge. In Foster v. Beckman, 85 S.W.2d 789 (the facts being different from those in the case at bar) the Texas Court of Civil Appeals distinguished Hines v. Foreman, but they did not, as they could not, overrule that decision. In Behymer v. Mosher Mfg. Co. (Tex.Civ.App.) 192 S.W. 1148, the court decided: "An affirmative answer by the jury to a special issue submitted, whether plaintiff's contributory negligence `caused or contributed to cause' injury, bars plaintiff's recovery, although such special issue did not use the word `proximately'; proximateness of the cause being necessarily implied."
Proximate cause is an indispensable element of the defense of contributory negligence. Foster v. Beckman (Tex.Civ.App.) 85 S.W.2d 789 (writ ref.). Manifestly there must be a causal connection between such negligence and the alleged accident.
Where a judge merely answers an inquiry and does not instruct, error cannot be urged. Foster v. Beckman, Tex.Civ.App., 85 S.W.2d 789; Beyer v. Hermann, 173 Mo. 295, 73 S.W. 164. And, as said in a text found in Volume 53 American Jurisprudence, Section 942, p. 667, the act of the court in merely replying to a jury's request for information is generally addressed to the court's discretion.
At it discloses on its face the only questions passed upon by that court, it is referred to as a sufficient statement upon which to deal with those questions. 1 The holding that Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326, overruled Foster v. Beckman (wr. ref.), 85 S.W.2d 789, is erroneous. The two cases are not in conflict.
There can be more than one proximate cause of a loss, but a finding that an act or omission Contributed to a loss is not the equivalent of nor does it suffice as a finding of proximate cause. Foster v. Beckman, 85 S.W.2d 789 (Tex.Civ.App. Amarillo 1935, writ ref'd); Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60 (1935, opin. apprvd.); Koons v. Rook, 295 S.W. 592 (Tex.Comm'n App. 1927, opin. apprvd.).
Then submit issues inquiring if (1) the act complained of was committed; then (2) if it was, was the act negligence; and (3) if the act was committed and was negligence, if it was a proximate cause of the injuries or damage complained of. An act complained of can be committed, be negligence and still not be a proximate cause of injuries or damages and will not defeat plaintiff's right to recover. Foster v. Beckham, Tex.Civ.App., 85 S.W.2d 789, wr. ref. Appellant's Point Three reads as follows:
Such testimony is insufficient to support a cause of action. Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Civ.App., 280 S.W. 882, writ dis.; St. Louis Wouthwestern Ry. Co. of Texas v. Gross, Tex.Civ.App., 268 S.W. 487; Foster v. Beckman, Tex.Civ.App., 85 S.W.2d 789, error ref.; Strickland Transportation Co. v. Atkins, Tex.Civ.App., 223 S.W.2d 675; 17 Tex.Jur., p. 520, sections 210 and 211. Moreover, our search of the record reveals no testimony indicative of any negligence on the part of appellee other than the specific acts which were submitted to the jury in issues 1 through 15, inclusive, and found adverse to appellant.
Peveto v. Smith, 134 Tex. 308, 133 S.W.2d 572. See also 60 C.J.S., Motor Vehicles, § 265, page 646; Norman v. Virginia-Pocahontas Coal Co., 68 W. Va. 405, 69 S.E. 857, 858, 31 L.R.A., N.S., 504; Spratling v. Butler, Tex.Sup., 240 S.W.2d 1016, 1017; Foster v. Beckman, Tex.Civ.App., 85 S.W.2d 789, 792, writ ref. On another trial, if the evidence as to prior infirmities and disease is the same, the court should instruct the jury as to the exclusion of improper elements of recovery in accord with the decision in Dallas Ry. Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683, 686.
Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326, by the Commission of Appeals, supports appellant's proposition that the court erred in refusing to define the term "moving and efficient cause" as used in the court's charge. Appellee would support the court's definition with Foster v. Beckman, Tex. Civ. App. 85 S.W.2d 789, which is in point. But as we construe the Cotten case, it overruled the Beckman case, and the authorities cited therein.
ar purport, as presented through the witnesses, Mrs. Turner Campe and Dr. Barrett; in this court's opinion, none of these statements came within the res gestae rule, none of them could have been admissible as a declaration against interest, because Miss Rupp — having so been eliminated as a party participant — had no interest left in the controversy; and, above all, because the whole case was tried by the appellees upon the theory that Miss Rupp had committed acts of negligence that concurred with the negligence of appellant Justiss as constituting proximate causes of the collision, hence, in any event, if that defensive position be sound, all such statements had become immaterial anyway, DeWalt v. Houston, 22 Tex. Civ. App. 409, 55 S.W. 534; San Antonio Pub. Service v. Alexander, Tex. Civ. App. 280 S.W. 753; Red Arrow Freight Lines v. Gravis, Tex. Civ. App. 84 S.W.2d 540; Wheeler v. Oregon R. Co., 16 Idaho 375, 102 P. 347; 76 A.L.R., pages 1126-1128; Foster v. Beckman, Tex. Civ. App. 85 S.W.2d 789; Great Atlantic Pacific Tea Co. v. Walker, Tex. Civ. App. 104 S.W.2d 627, sec. 6; Metropolitan Casualty Ins. Co. v. Woody, Tex. Civ. App. 80 S.W.2d 771, sec. 2, error dismissed; 17 Tex.Jr. page 642, section 270; Anizan v. Paquette, Tex. Civ. App. 113 S.W.2d 196, error dismissed; Hall v. Simmons, 24 Tex. 227; Volume 39, Texas Digest, Witnesses, 386; Brotherhood of Locomotive Firemen Engineers v. Raney, Tex. Civ. App. 101 S.W.2d 863, error dismissed. None of the definitions assailed, that is, those expounding to the jury "unavoidable accident", "under control", and "new and independent cause", are thought, as applied to the individualistic facts of this particular case, to have been tainted with prejudicial error; in their order these definitions were as follows: