'However, notwithstanding the criticism, which seems to be well founded in part at least, the test used in the trial court's definition and the definition including the element of foreseeableness have been uniformly approved as the rule in this state. Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Gulf, C. & S. F. Railway Co. v. Bennett, 110 Tex. 262, 219 S.W. 197; San Antonio & A. P. Railway Co. v. Behne, Tex.Com.App., 231 S.W. 354; City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 27 A.L.R. 927; Gulf, C. & S. F. Railway Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659; Southwestern Bell Telephone Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418; International-Great Northern R. Co. v. Lowry, 132 Tex. 272, 277-278, 121 S.W.2d 585; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 247-248, 223 S.W.2d 613.'
The criteria stated in clauses (c), (d), and (e) of the quoted section require the conclusion that Whitten's accident was the result of a new and intervening cause. The precedent which appears most analogous to this case is Southwestern Bell Telephone Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418 (1938). The defendant Telephone Company was advised that it should remove a telephone wire from a house that was going to be wrecked. It delayed doing so, and a third party disconnected the wire from the house and tied the loose end to a porch cost.
His failure to cause the train to stop after being advised by the station agent of the presence and destination of defendant in error and his helper was the breach of a duty owed by plaintiff in error to defendant in error. Did that negligence proximately cause defendant in error's injury? The accepted test in this State for determining such question is whether the injury, or a similar injury, might reasonably have been anticipated as the natural and probable result of the negligent act. Texas Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Gulf, C. S. F. Ry. Co. v. Bennett, 110 Tex. 262, 219 S.W. 197; San Antonio A. P. Ry. Co. v. Behne, (Com. App.) 231 S.W. 354; City of Dallas v. Maxwell, (Com. App.) 248 S.W. 667, 27 A. L. R. 927; Gulf C. S. F. Ry. Co. v. Ballew, (Com. App.) 66 S.W.2d 659; Southwestern Bell Telephone Co. v. Hardy, (Com. App.) 117 S.W.2d 418. Criticism has been directed to the use of this test for determining proximate cause and other tests suggested as more logical, simpler or easier of administration.
Therefore, this court should sustain Critical Path’s legal sufficiency challenge to the proximate cause finding. See Arguelles , 222 S.W.3d at 730 ; Coleman , 971 S.W.2d at 616-18 (original actor not liable when subsequent actor deliberately violates policies and causes harm); Aerospatiale Helicopter , 778 S.W.2d at 496-97 (while effects of the original negligence persisted, pilot, who was aware of those effects, disregarded procedures causing the harm; pilot’s conduct was superseding cause as matter of law; sustaining legal sufficiency challenge); Wolf , 717 S.W.2d at 673 ; see also Sw. Bell Tel. Co. v. Hardy , 131 Tex. 573, 117 S.W.2d 418 (1938) (another party’s independent act of moving a telephone wire that defendant telephone company delayed in removing was new and independent cause of subsequent accident); Noblin , 296 S.W.3d at 777-78. For these reasons, I respectfully dissent.
Instead, it was not an instruction to the jury, but was simply an acknowledgment that the defendant, testifying as an expert, was qualified to state an opinion in answer to the question. Appellant cites Acord v. General Motors Corp., 669 S.W.2d 111 (Tex. 1984) and Southwestern Bell Tel. Co. v. Hardy, 91 S.W.2d 1075 (Tex.Civ.App.-Beaumont 1936), rev'd, 131 Tex. 573, 117 S.W.2d 418 (1938). These cases offer no support for her argument, however.
Then, in each case, either a second act by another person created a new and dangerous condition that injured the plaintiff or the intervening act could not be anticipated or foreseen. See Humble Oil Co. 427 S.W.2d at 315 (act of plaintiff's co-employee in creating false appearance of safety of ladder that co-employee leaned against tank was intervening cause of plaintiff's injury from fall, and defendant's failure to equip tank with ladder not a proximate cause of accident); Aerospatiale, 778 S.W.2d at 497 (maker of helicopter whose engine failed not a proximate cause of injury where second engine could safely operate helicopter and intervening cause of pilot shutting off second engine caused crash); Southwestern Bell Tel. Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418, 420 (1938) (third party was intervening cause of injury where third party situated wire negligently left by defendant telephone company so that it caught plaintiff under the chin and injured him); Hendricks v. Todora, 722 S.W.2d 458, 762-63 (Tex.App. — Dallas 1986, writ ref'd n.r.e) (drunk driver's crashing into building was unforeseen intervening cause cutting off liability of landowner for failure to erect curb or barrier); Wolf v. Friedman Steel Sales, Inc., 717 S.W.2d 669, 674-75 (Tex.App. — Texarkana 1986, writ ref'd n.r.e.) (truck thief's act of abandoning truck in road was intervening cause of accident cutting off liability of truck owner in failing to secure chains on truck). In the case before us, although Bel-Ton did not technically create the dangerous condition, it failed to remove the east-wall switch and allowed the condition to remain.
The intervening cause, if it is a concurring cause, does not break the chain of causation between the defendant's negligence and the plaintiff's injury simply because the intervening cause was unforeseeable.' As to whether or not the intervening conduct of the two boys in placing the telephone wire in the tree and over the driveway was reasonably foreseeable or not, we feel we are governed by such cases as Texas P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896) and Southwestern Bell Telephone Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418 (1938). These cases have been cited as authority by our Supreme Court as late as Humble Oil Refining Company v. Whitten, 427 S.W.2d 313 (Tex. 1968); and Robert R. Walker, Inc. v. Burgdorf et al., 150 Tex. 603, 244 S.W.2d 506 (1952).
They say Howard, who discovered the fence being torn down to erect a new fence and prevented a new fence from being constructed, was guilty of a new and independent cause of the collision in question when he failed to repair the fence for 59 days. In support of their position, they cite Seale v. Gulf, Colorado Santa Fe Railway Co., 65 Tex. 274 (1846); Southwestern Bell Telephone Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418 and Uvalde Construction Co. v. Hill, 142 Tex. 19, 175 S.W.2d 247, among others. These cases are authority for the general rule that for the original negligent act to be the proximate cause, the new and independent cause was not within the reasonable contemplation of the original wrongdoer.
Any act of appellee is too remote. South-western Bell Tel. Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418; Baughn v. Platt, 123 Tex. 486, 72 S.W.2d 580; Seale v. Gulf, C. & S. F. R. Co., 65 Tex. 274. Coolidge-Locher Company could not foresee or anticipate that the Chamber of Commerce, after full knowledge of the conditions, would continue to operate the machine without taking any precautions whatever. Such action was the direct cause of the accident, and it constitutes an efficient and intervening cause without which the injury would not have occurred.
An attorney cannot testify orally in his argument, and what he cannot do orally he certainly cannot do in writing. Wichita Transit Co. v. Sanders, Tex.Civ.App., 214 S.W.2d 810; Texas Employers' Ins. Ass'n v. Rowell, Tex.Civ.App., 104 S.W.2d 613; Huey Philp Hardware Co. v. McNeil, Tex.Civ.App., 111 S.W.2d 1205; Southwestern Bell Telephone Co. v. Hardy, Tex.Civ.App., 91 S.W.2d 1075, reversed, 131 Tex. 573, 117 S.W.2d 418. In Sec. 237, 41-B Tex.Jur. 281, it is said: