author: GRAVES, J.

text:
    SOUTHERN GAS & GASOLINE ENGINE CO. v. ADAMS & PETERS.
    (No. 7409.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 15, 1917.
    Rehearing Denied Nov. 22, 1917.)
    1. Sales <s^>442(5) — Breach oe Waeranty— Damages — What Constitutes.
    Where plaintiff sold a tractor, providing that it should not be held responsible for damages in the use thereof either original or consequential, and that defendant should make good any loss to the tractor caused by fire, carelessness, or malicious injury until fully paid for, defendants could, in an action for the purchase price, set off the loss to their crops owing to the defects in the tractor; such damages not being consequential nor special.
    2. Sales <⅜=>354 (7) — Pleading—Deeects in Goods — Sueeioiency.
    In action for purchase price of tractor, answer alleging that the engine as a whole and throughout all of its parts showed defective material and Workmanship, and that it gave way, further specifying a number of parts which broke, was not indefinite and uncertain.
    3. Appeal and Error ¡§=^1053(6) — Evidence —Cure oe Errors.
    Error, if any, in admitting testimony, in an action for the price of a tractor, tending to show defective design, was cured by instruction to consider only defective workmanship and materials, and not to consider defects in design.
    4. Sales <⅞=»358(1) — Evidence—Admissibility.
    In action for price of tractor under contract not specifying the design of the engine to be supplied, it was not error to. admit testimony tending to show defective design.
    5. Appeal and Error <3=^1052(5) — Harmless Error.
    Error, if any, in admitting testimony in an action for the price of a tractor showing defective design,, was harmless,- where the jury found that the engine was defective in both material and workmanship.
    6. Damages ¡§=>153 — Measure oe Damages— Interest.
    In action for price of a tractor, where defendants counterclaimed for damages to the crops and prayed an amount in excess of that awarded, interest on the amount awarded could be allowed, in the absence of a specific prayer therefor.
    Appeal from District Court, Harris County. Action by the Southern Gas & Gasoline Eh-gine Company against Adams & Peteirs, wherein defendants filed a counterclaim. Judgment for defendants, and plaintiff appeals.
    Reformed and affirmed.
    See, also, 169 S. W. 1143.
    Bryan & Bryan, of Houston, for appellant. Eisher, Campbell & Amerman, of Houston, for appellees.
   GRAVES, J.

This suit was brought by the Southern Gas & Gasoline Engine Company, appellant, against Adams & Peters, a partnership, appellees, for the recovery of the balance due on the purchase price of one 20 H. P. Flour City traction engine, sold by •appellant to the appellees in October, 1911. Appellees filed an answer, alleging that the engine was defective as a whole and in all of-its parts in material and workmanship, and would not do the work it was sold to do, and claiming damages for the difference between the value of the engine at the time delivered and the price which they contracted to pay for same, with interest, and for money spent in making repairs upon the engine, and for .damages suffered by them in the losses on their potato crop by reason of. its defective condition and failure to work properly. The case was submitted to the jury on special issues, all of which were found in favor of appellees, and judgment was rendered thereon in their favor, awarding a recovery of the difference between the contract price and the value of the engine delivered, and for freight and demurrage, and for damages for delay in harvesting their potato crop, all aggregating $836.31, over and above the amount due the appellant, and judgment was rendered against it in favor of appellees for that amount, from which this appeal is prosecuted.

The court, however, in entering this judgment for them, refused to allow appellees interest at 6 per cent, per annum upon the amount of damages found in their favor by the jury, or the balance due them after offsetting the amount due appellant, from the date the same were found to have been sustained, June 15, 1912, until the trial, which would have entitled them, as they alleged, to judgment for the larger amount of $863.23, with 6 per cent, annual interest thereon from October 19, 1912, until paid. Upon the court’s denial of their motion to so allow them interest, they filed and have presented here a cross-assignment raising that issue. The case, then, is regularly before this court upon a number of assignments urged by appellant, and the cross-assignment of appellees relating to interest.

By appellant’s .first two assignments it is contended that appellees were not entitled to offset against its debt sued upon any damages they might have sustained for the loss of or for delay in marketing their potato crop, because it appears from the express terms of the written contract between them that appellant was not to be held responsible for damages in the use of the machinery, either original or consequential, and, such damages being consequential, no counterclaim therefor would lie. The provision of the contract referred to is as follows:

“It is a further condition of this contract that the Southern Gas & Gasoline Engine Company shall not be held responsible for damages in the use of this machinery, either original or consequential, and purchaser shall make good any loss to them on same caused by fire, carelessness, or malicious injury until same is fully paid for.’’

With much earnestness it is argued that, in defining damages, the terms “special” and “consequential” are synonyms for one and the same thing, and hence identical; that the $1,734.30 receiyed by appellees for the loss sustained by them from the delay in marketing their potato crop, because of the failure of the engine to work properly, being “special damages,” are likewise “consequential damages,” and therefore within the quoted terms of the contract. But, while appreciating its force, we are unable to agree to this construction of the meaning of the contract. Upon the contrary, we agree with the trial court that its terms did not exempt appellant from the kind of damages here obtained against it, and think it quite plain that the damage appellant had in mind in preparing the contract was some damage which might occur during the actual operation of the engine, such as the explosion thereof, or the breaking or flying off of a part of the machinery, or some other such injury resulting proximately from the actual operation of the machinery, for which it might otherwise have been liable. This view of its meaning and intent is strengthened, it seems to us, by the correlative obligation placed by the last clause of the quoted paragraph upon appellees to indemnify appellant for any loss on the engine itself, pending full payment for it, resulting from fire, carelessness, or malicious injury; in other words, it was evidently contemplated upon the one hand that careless, incompetent, or even malicious use or operation of the engine might subject appellant to liability for damages as its consequence, or upon the other result in the destruction or substantial injury to the machine itself, and it was sought to thus exempt appellant from responsibility or loss in either contingency. A further consideration is that the damage so recovered for did not result from any actual use or operation of the engine, but rather from its nonuse or failure to operate at all. Both assignments are overruled.

The third assignment challenges the sufficiency of the allegations in appellees’ answer, charging, in effect, that the engine broke and gave way in its various parts and would not do the work it was sold and represented to do, on the ground that they are too vague, indefinite, and uncertain in not specifying what parts broke or gave way, and what particular work it was represented the engine would do. But, when considered as a whole, we think the answer sufliciently set out the nature and extent of the defects complained of, and gave appellant ample notice of what it must meet in contending that the engine filled the requirements of the contract and would do the work it was claimed by appellees to have been sold to do. It was charged that within one year from the date of shipment the engine as a whole, and throughout all of its parts and appurtenances showed defective material and workmanship; that by reason of such defects, it began to and did break and give way, and that among the inferior and defective parts that so broke, gave way, and failed to properly work were those specified in a long itemized list; that appellees, within the year’s time called for in the contract, notified appellant of all these conditions, and that the engine was absolutely worthless, and in vain demanded that it replace the same with one of good workmanship and material. It was further alleged that the engine had been sold to appellees under the repeated representation that it was a traction engine of 20 horse power, and of the very best workmanship and material, made after previous notice of just what work they desired it to do upon their potato farm in Brazoria county, Tex., and that it would do that particular work. This assignment cannot therefore be sustained.

As the fourth, fifth and sixth assignments raise in varying forms essentially, or at least in practical effect, the same issue, they will be treated together. The first of these assails the admission of testimony which, it is claimed, tended only to show that the engine in question was manufactured upon an incorrect design or plan of construction, while the other two attack the court’s rulings in not sustaining an exception to a special issue, and in not giving a requested charge, both based upon the contention that appellant would not, under the contract sued upon, be responsible for damage resulting from any such defective design. The argument is that, when boiled down, the complained of testimony of the witness R. 0. Adams only tended to show, if indeed that much, that certain parts of the engine, including, among others, the connecting rod-bearing surface on the crank shaft, the rocker arms, the housing of the cam shaft, the connecting rod bolts, and the piston pins, were manufactured upon an incorrect design, and that, in an action for damages for breach of a specific warranty of workmanship and material against the seller of an engine, not its manufacturer, it is error to admit evidence which reflects upon the design or plan of construction of the various parts of the engine, since such seller does not impliedly warrant the sufficiency of its design and is not responsible for damage resulting from defects therein. The leading cases cited in support of this position are the following: J. I. Case Plow Works v. Niles & Scott Co., 90 Wis. 590, 63 N. W. 1013; Bancroft v. San Francisco Tool Co. (Cal.) 47 Pac. 684; Wilson v. Avery, 182 S. W. 884. A careful examination of the voluminous testimony of the witness Adams discloses that there was much of it that went to other matters than mere defects in the design or plan of the engine and its various parts, that is, to defects in workmanship and material, and such is our finding of fact; but conceding, for the sake of argument, that some of it did only tend to reflect upon the plan of building of different parts of the engine, then we think that any error that may have been committed in admitting that much of it was cured and rendered wholly harmless by the following instruction in the court’s charge:

“Was or was not the workmanship used in the construction of the engine involved in this controversy of the best class? In connection with this question and your answer thereto, you are charged that you will not consider any defects1, if any, in the design of the engine, or its parts, in so far as the design is distinguishable from the workmanship thereof.” Railway Co. v. Gober, 125 S. W. 383; Boardman v. Woodward, 118 S. W. 551; Railway Co. v. Matherly, 35 Tex. Civ. App. 604, 81 S. W. 589, affirmed 98 Tex. 625; Railway Co. v. Brown, 33 Tex. Civ. App. 269, 76 S. W. 794; Knowles v. Railway Co., 121 S. W. 232.

It must also be presumed that the jury both understood and followed this specific direction from the court, and did not consider that portion of Adams’ testimony relating alone to defects in design of any part of the engine. Ashcroft v. Pouns, 1 Tex. 594; M., K. & T. Ry. v. Craig, 52 Tex. Civ. App. 611, 114 S. W. 850; M., K. & T. Ry. v. Flood, 35 Tex. Civ. App. 197, 79 S. W. 1106, affirmed 98 Tex. 625; H. & T. C. Ry. v. Hester, 7 S. W. 776; Railway v. Harper, 53 Tex. Civ. App. 614, 114 S. W. 1168, affirmed 114 S. W. 1199; Patterson v. Frazer, 93 S. W. 146. Furthermore it was not practicable for the court in advance to determine what part of the testimony might relate to design and what part to material and workmanship only, in a complicated piece of machinery such as this engine was, for the reason that the line of demarcation between defects of the one or the other kind was necessarily narrow and not easily distinguishable.

But for a much more deeply lying reason .we think the three assignments now under consideration cannot be sustained, and it is that, under the contract here sued upon, no fixed nor particular design of engine had been agreed upon and accepted between the parties. For that reason, if for no other, the principle followed in the cases hereunder relied upon by appellant do not fit the developed facts of this case, and cannot rule it. We quite agree with appellant, and with the holding of the two- eases cited from other states, that if a certain design of construction is submitted and agreed upon, and it is contracted that the machinery, or other product, shall be manufactured and delivered in accordance with such design, but of good material and workmanship, the purchaser cannot thereafter claim a breach of the contract for good workmanship, because, forsooth, the model or design which he examined, approved, and contracted for afterwards proved inadequate for the purpose desired, or of improper construction and upon wrong mechanical principles.

The two cases cited by appellant go no further than such a holding. In the Bancroft Case, plans and specifications of the elevators, including the drums, were submitted, examined, and approved, and it was contracted that the same should be put in “as per plan and specifications submitted.” In the Case Plow Works Case, the purchaser “specified the sizes and dimensions and materials of the plan, and kind of wheel it desired, and its agents looked over and examined similar wheels, manufactured by the vendor, which had been tested in their presence, as to their quality and strength,” and the court said that “the plaintiff must be held to have obtained that for which it contracted.” A careful reading of the opinions shows that the court’s holding in each case was based upon the previous approval of the particular design. The third case cited (Wilson v. Avery Co., 182 S. W. 884), while not, we think, at all relevant here, simply holds that where the purchaser had himself tendered the issue that the engine was constructed on a wrong mechanical principle, and for that reason would not do the work and was valueless, he could not complain of the admission of evidence in rebuttal that the company’s other engines of like construction and plan would and did do the same work.

Looking to the record here, we find that the contract of sale contained no plans or specifications of the particular design of engine sold, the only descriptive reference to it therein being, “One 20 PI. P. Flour City Gasoline traction engine,” nor had any ^uch design been otherwise agreed upon. True, appellant’s president testified that, prior to the sale, he exhibited to one of the purchasers, Mr. Adams, one of their 30 horse power engines then in stock, and also a catalogue of the 30 and 40 horse power sizes, but that up to that time the 20 horse power size they finally sold him had not been catalogued. Both Mr. Adams and Mr. Peters, however, with whom alone all negotiations with appellant were had, denied that they knew anything about the design, construction, or detailed arrangement of the engine, or that they had ever seen any catalogue, or printed plans and specifications of the same, prior to signing the contract of purchase. But even if we dre unjustified in finding that no particular design of engine was fixed by the terms of the contract, and, further, if error was committed by the court in admitting any of the evidence, or in making either of the other rulings complained of in these assignments, we yet think such action became harmless when the jury found that the engine was defective in both material and workmanship, and that, by reason thereof, appellees were delayed in harvesting their potato crop, because appellees, upon such findings, became entitled to recover the damages suffered resulting from that delay, without reference to the question of whether or not the design of the engine was in any respect defective. In other words, the verdict rested upon other issues supported by different and legal evidence.

In this connection, without detailing the evidence, we deem it sufficient to say that, not only did much of the testimony of ap-pellee Adams relate to defects in workmanship and material, as has aboye been found, but, aided as it was by other evidence, there was ample support for the jury’s findings that neither the workmanship nor the material in the engine were of the very best class as the contract had provided they should be, and that as a consequence appellees suffered damage in the amount so found for them; indeed, appellant’s own witnesses, including the president of the company that manufactured the engine, upon cross-examination admitted that a number of the alleged defects testified to by appellee Adams, such as the use of “stud bolts” instead of “loose bolts,” failure to cast the cam shaft boxes integral with the crank case or trunk,- the omission of bushings from the piston of the motor, and the employment of a Heinze instead of Remy magneto, were real defects, or at least did not embody the best workmanship, and that remedying them would constitute “beneficial improvements,” which could be effected without changing the design, or model of the engine. In fact, the last-mentioned witness, Mr. Kinnard, testified that all these changes had been made since the sale to appellees in 1911, and that his company was at the time of this trial manufacturing this same engine in its improved condition in the respects referred to, and upon the same model from which appellees’ was made.

Any issue as to defects in the design alone of the engine having been thus eliminated, and the verdict and judgment having been grounded upon other and material issues amply supported by admissible evidence, errors, if any, in admitting any of Adams’ testimony and in refusing the special charge requested were thereby cured, and no harm resulted to appellant. The three assignments presenting these questions are accordingly overruled. Railway Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S. W. 1111; Engledow v. James, 35 Tex. 81; Hancock v. Stacy, 103 Tex. 219, 125 S. W. 584; Simpson v. De Ramirez, 50 Tex. Civ. App. 25, 110 S. W. 149; 1 Michie’s Texas Digest, p. 798, 1st col., 3d par., also (e), and cases cited; Shifflet v. Morelle, 68 Tex. 382, 392, 4 S. W. 382; W. P. Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S. W. 918; De Hoyes v. Gal., etc., R. Co., 52 Tex. Civ. App. 543, 115 S. W. 75-77; Brown v. Johnson, 73 S. W. 49.

The seventh and eighth assignments are overruled without discussion, because we think them without merit, and because in effect they raise the same issues next disposed of under our discussion of appellees’ cross-assignment relating to interest. That assignment and its subjoined proposition are as follows;

“The court erred in refusing to allow appellees interest upon the amount of damages found in their favor by the jury, and the balance due thereon, from the date when the same were sustained, to wit, June 15, 1912, at the rate of 6 per cent, per annum.
“Proposition.
“Interest upon the amount of damages found is allowed by way of indemnification and full compensation for the injuries sustained, and as a part, and in the nature, of general damages, and the same will be allowed under a prayer for general relief, where the amount claimed in the pleadings is stated at a sufficient sum to cover the loss at the time of the claim, and the interest thereon from that date to the time of trial.”

- We are of opinion that this position is well taken and that the assignment must be sustained and interest allowed. The trial court’s finding upon this matter, as recited in its judgment, is:

_ “The court finds that the defendants are entitled, as a matter of right and equity, to interest upon the amount of damages found in their favor by the jury from the date when the same were sustained, to wit, June 15, 1912, at the rate of 6 per cent, per annum, the amount upon which the defendants would be entitled to receive interest, of course, being reduced by the amount of the principal and interest of the deferred payments of the purchase price of the engine, as each payment matured and became payable, if the pleadings of the defendants, in the opinion of the court, permitted a judgment for defendants for such interest, and the court would allow interest upon the damages found as a part of the compensation and indemnification to which the court finds the defendants are entitled, if their pleadings permitted such recovery; but, it being the opinion of the¡ court that the pleadings of the defendants will not permit this court to enter judgment in their favor for such interest, the same is denied, and for this reason the motion for the defendants heretofore filed, to enter judgment in their behalf for the sum of $863.23, with interest thereon from October 19, 1912, at the rate of 6 per cent, per annum until paid, is overruled, to which they except.”

This part of the judgment was error. Ap-pellees had sued for $2,909.58, and thus laid their damages at a sum far more than sufficient to cover their actual loss at the time of the accrual and interest upon it until the trial. Such being the state of the pleadings, they were entitled to recover interest, reduced in the manner just recited from the judgment below, under their general prayer, without the necessity of specifically praying for it. Magnolia, etc., Corp. v. Chaffee, 192 S. W. 562; Railway Co. v. Jackson, 62 Tex. 214, 4th par. et seq.; Railway Co. v. Greathouse, 82 Tex. 1ll, 17 S. W. 834, last paragraph; Railway Co. v. Addison, 96 Tex. 64, 3d par., 70 S. W. 200; W. U. Tel. Co. v. Garner, 83 S. W. 434; Erie City Iron Works v. Noble, 58 Tex. Civ. App. 245, 124 S. W. 174, 3d par.

The trial court’s judgment will therefore, be so reformed as to give appellee judgment for the sum of $863.23, with interest thereon from October 19, 1912, at the rate of 6 per cent, per annum until paid, instead of for $836.31, with interest thereon at the rate of 6 per cent, per annum from May 12, 1916, until paid, and as thus reformed, will be affirmed. „

Reformed and affirmed.
      other cases see same topic and KEY-NUMBER in all Key «Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. BEHNE et al.
    (No. 5788.)
    (Court of Civil Appeals of Texas. Austin.
    June 11, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1. Railroads <S=>113(10) — Roadbed—Insufficient Drainage — Liability for Death.
    Under tho statute (Rev. St. 1911, art. 4694), creating canse of action for death caused by neglect or carelessness of a railroad, and the statute (article 6495) inhibiting a railroad constructing its roadbed without making the necessary culverts or sluices, as the natural lay of the land requires, for the necessary drainage, a railroad in constructing its road across a creek and its valley, failing to leave sufficient openings to permit the flow of water for such necessary drainage, and as a result the accumulation of flood waters producing such pressure on the trestle as to cause it to collapse, float down stream, and knock from a tree one who had taken refuge therein from the rising waters, thereby causing his death, the company is liable, if its failure was the proximate cause of the death.
    2. Railroads <§==>113(10) — Roadbed—Insufficient Drainage — Proximate Cause of Death — Anticipation .
    For failure of a railroad, in constructing its road across a creek and the valley thereof, to leave sufficient openings for drainage, as required by statute (Rev. St. 1911, art. 6495), to be proximate cause of death of one who, having taken refuge from rising waters in a tree, was knocked therefrom by the company’s trestle, floated down by high waters, it is not necessary for it to have anticipated that some one would probably be so located in a tree; but it should anticipate those things which might happen, though unusual.
    3. Railroads <§=>114(4) — Roadbed—Insufficient Drainage — Proximate Cause of Death — Questions for Jury.
    Whether a railroad — whose trestle, occupying a fourth of the length of its road across a ereek and the valley thereof, was floated by flood waters, knocking from a tree one whp had taken refuge therein from rising waters — failed to leave sufficient opening for drainage, as required by statute (Rev. St. 1911, art. 6495), and, if so, whether such failure was the proximate cause of such person’s death, is properly left to the jury.
    Appeal from District Court, Milam County ; J. 0. Scott, Judge.
    Action by Albert Behne and another against the 'San Antonio & Aransas Pass Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Henderson, Kidd & Henderson, of Cameron, for appellant. U. S. Hearrell and R. B. Pool, both of Cameron, for appellees.
   KEY, C. J.

The following statement is copied from appellant’s brief:

“This suit was instituted against appellant by appellees to recover damages for the death of their two sons, Ed and Manuel Behne, alleged to have,been caused by the breaking and floating down of appellant’s trestle in Elm creek valley, bearing down in its wake a tree which ap-pellees’ sons had climbed; they having been caught in said valley by an unusually sudden overflow, and having taken refuge in the tree from the rapidly rising water. Appellant’s general demurrer and special exceptions to appel-lees’ petition were overruled. The evidence developed that appellees’ son Ed was lost, together with another of their sons, Joe, but that their son Manuel escaped. And the case was submitted to the jury on appellant’s liability for the death of appellees’ son Ed. The jury returned a verdict for the sum of $2,500, and the court entered judgment for that amount. Appellant’s motion for a new trial, seasonably presented, was overruled by the court, to which ruling of the court appellant excepted, and gave notice of appeal. The_ appeal was perfected, and is presented to this court for review on the errors assigned in said motion for a new trial.”

At the trial the plaintiffs abandoned, all grounds of recovery except those resulting from the defendant’s alleged failure in the construction of its roadbed across Elm creek, and the valley thereof, to leave sufficient openings to permit the flow of water as required by the natural lay of the land for the necessary drainage thereof, which is a statutory duty imposed upon all railroad companies in the construction of their roads. No issue was submitted to the jury concerning the alleged death of Joe Behne.

The charge of the court and the answers made by the jury to the special issues submitted therein were as follows:

“Gentlemen of the Jury: This case is submitted to you on what is known as special issues; that is, certain questions will be propounded to you, and space left under each question for you to make your answers, and upon your answers the court will proceed to enter judgment.
“In this connection you are instructed that: ‘Negligence’ is the want of ordinary care or the want of such care as a person of ordinary prudence would exercise under the same or similar circumstances. ‘Contributory negligence,’ as applied to this case, is such negligence on the part of Ed Behne as proximately helped to produce or contributed in producing the death of the said Ed Behne, and without which his death would not have occurred. ‘Proximate cause’ means a direct cause without which the death of the plaintiff’s son Ed Behne would not have occurred, and from which it could have been reasonably anticipated that the death of plaintiff’s son or some like injury would result as a natural and probablo consequence.
“The burden of the proof is on the plaintiff to establish their material allegations by the preponderance of the evidence. -The jury are the exclusive judges of the facts proven, of the credibility of the witnesses, and of the weight to be given their testimony.
“Special Issue No. 1: Did the defendant, in the construction of its road bed across Elm creek and the valley thereof, fail to leave sufficient opening to permit the flow of water, as required by the natural lay of the land, for the necessary drainage thereof? Answer: Yes.
“Special Issue No. 2: If you have answered ‘Yes’ to special issue No. 1, then was such failure of defendant to leave sufficient opening the proximate cause of the death of the plaintiff’s son Ed Behne? Answer: Yes.
“Special Issue No. 3: Was the flood in question of date April 22, 1915, of such character that railroad engineers of ordinary care, caution, and prudence could reasonably have anticipated the same? Answer: Yes.
“Special Issue No. 4: Was the plaintiff’s son Ed Behne guilty of contributory negligence, under the circumstances of the situation, in remaining in the valley or bottom of Elm creek for the length of time as shown by the evidence? Answer: No.
“Special Issue No. 5: What sum of money, if paid now, would represent the value of the pecuniary aid which the plaintiffs could reasonably have expected to receive from their said deceased son Ed Behne during his minority and after he had attained to his majority, less the cost of the maintenance and support of their said son during his minority? Answer: $2,-500.00 (twenty-five hundred dollars).
“In this connection, you are instructed that, in determining your answer to the foregoing special issue No. 5, you will not take into consideration any grief or sorrow suffered by the plaintiffs on account of the death of their said son, or the loss of companionship of their said son! J. 0. Scott, Judge.”

We also further copy as follows frofll appellant’s brief:

“The undisputed evidence shows that appellant’s roadbed across Elm creek valley consists of about 3,000 feet of dump or embankment, and about 1,000 feet of trestle; that said dump, or embankment, had broken and washed out some four times prior to the flood in question, but that the trestle had never washed down or floated away until the occurrence of the flood in question; that below appellant’s trestle in Elm creek valley, and parallel thereto, runs the Cameron and Ben Arnold public road, which had been generally traveled for several years prior to the flood in question, and that a short distance further down the valley, and on the north side of the channel, is a small tract of unfenced land; that people traveling said public road sometimes camped at Elm creek below appellant’s roadbed, and that fishing and picnic parties had frequently, for several years, resorted to said unfenced tract of land; that such camping was at times when the creek was within its banks, and that there was no travel along said public road in Elm creek valley, nor any camping on or resorting to said tract of land or other part of said valley, when the creek was high and flood waters covered the valley; that the scene of the disaster complained of and said tract of unfenced land was within a stock-law district, and had been for a long period of time, and that no stock was allowed to run at large, or had been seen at large, in that locality for several years prior to the date in question; that the stock belonging to campers had been at different times seen at said place in Elm creek valley, but only at times when their owners were camped there for fishing or for spending the night, and such stock were not at large; that the camping at said place of picnic and fishing parties was not extensive enough to keep down the weeds', but that through the spring of every year the weeds, except in the road, grew very thick and very rank in said valley and on said track of unfenced land; that on the 22d day of April, 1915, appellees’ sons had driven from their home, a distance of about 16 miles, to Elm creek, for the purpose of fishing that day and that night; that they had fished through the day, and about 7 o’clock in the evening they noticed the weather threatened rain, and thereupon began hitching their team to the wagon, and undertook forthwith to drive out of said valley to higher ground beyond the overflow district; that within 25 to 40 minutes after the rain began the flood waters were four to five feet deep over said valley, and appellees’ said sons were unable to reach higher ground beyond the flood district, and they climbed a tree at the edge of said .Cameron and Ben Arnold public road, a short distance east of and below appellant’s trestle; that about 30 minutes after they had climbed said tree appellant’s trestle gave way, anft floated down the valley, coming in contact with the tree which appellees’ sons had climbed, and bearing it down; that when the trestle struck the tree appellees’ sons were thrown onto said trestle or into the flood waters, and Ed and Joe Behne were killed or drowned.”

That statement is supplemented by the following substantially correct statement in appellees’ brief:

“The material averments with respect to the only grounds of negligence relied upon were, in substance, as follows:
‘Tt was charged that at the place where appellant, prior to April 22, 1915, constructed its roadbed and embankment across Elm creek and the valley thereof, about three miles north from Cameron, the natural lay of the land required for its necessary drainage a space of 3,965 feet, same being the distance between the high-water mark on the north and the high-water mark on the south side of the creek; that on the south side appellant, in violation of the statutes of the state, erected, a solid dump or embankment 6 or 7 feet in height, extending from the south bank of the channel to the high-water mark on the south side, a distance of 2,132 feet, and on the north side a similar embankment reaching from the north end of the trestle to the high-water mark on the north side, 846 feet in length; that the bridge proper across the channel was 154 feet long, and that the trestlework connected with the bridge on the north side of the channel, and extended north to the beginning of the dump on the north side, 832 feet, thereby leaving, as the only place for flood waters to escape, an opening on the north side 986 feet, or approximately one-fourth the distance provided for by nature between the two high-water marks; so that on account of said embankments and insufficient openings the flood waters on April 22, 1915. were diverted from their natural course, and caused to surge through this artificial outlet and against the trestle with such concentrated and accelerated force that the trestlework, consisting of stringers of large timbers, steel rails, and cross-ties, was torn from its anchorings and hurled down the stream and valley, foiling trees in its wake; that just below and opposite the trestle, and east of the right of way, there was an open and unfeneed tract of land, consisting of 2 or 3 acres, through which ran the Cameron and Ben Arnold public road; that said road had for many years been used continually and habitually by the public generally, and that said vacant tract of land had for many years been habitually used as a public camping ground; that it was a common resort for picnic parties, and that people fishing on said stream frequently and habitually camped at that place, especially in the spring of the year, and that all of such facts and conditions were known to the defendant; that on the date of said flood Ed Behne, his two brothers, and their uncle, John Burnson, were fishing on the north bank of the stream, about 200 yards below the railroad, and when, about 7 o’clock p. m., the weather conditions indicated the probability of a heavy rainfall and rise in the creek, they made hurried preparations to leave the overflow district; that when they had hitched their team of mules to the wagon and were ready to start they - noticed that the creek was rising rapidly, and hastily undertook to drive to higher land, but when they had reached a point on said public road about 100 yards below and opposite the trestle the rapid rush of waters at that place, caused by the embankment and by the insufficient opening at the trestle, forced them to abandon the' team and wagon and take refuge in the trees; that the three brothers climbed a tree near by, which stood partly in the road, and had thus reached a place of safety but for the fact that the trestle struck the tree and bore it down, causing the boys to fall from the tree onto the trestle and into the water, and resulting in the death of Ed Behne. And in paragraph 16 of the petition it was further alleged as follows:
“ ‘Plaintiffs say that for many years it is well known that sudden rises or flood waters occur on Elm creek and its tributaries, and that said Elm creek drains an extensive territory, and that when great freshets occur, brought about by sudden and heavy rainfall, said Elm creek is liable to overflow its banks and bottom within a short time, and that the defendant’s skillful engineers and experienced bridge builders did know such facts, or should have known such facts by the exercise of such care as is required of them; that they should have realized, from all the circumstances and conditions that surround said place and public road, that a failure to properly erect said trestle, and a failure to pz'ovide sufflcient openings for water to pass through, that the giving way of said trestle and floating around of the steel rails, cross-ties, and the large stringers all together, was calculated to destroy, kill, and drown persons, stock, and animals that were in its reach, or that said structure might come in contact with, and that both persons and live stock might probably be in the reach of same; all of which facts and circumstances were in reasonable contemplation of such engineers and bridge builders when the injury occurred as aforesaid.’
“The evidence is without conflict to the effect that appellant’s roadbed, bridge, and trestle were constructed and maintained as alleged by appellees, diverting and concentrating the flow of water by means of a solid embankment across the valley on each side of the stream, in all about three-fourths of the distance provided for by nature, and as shown by *-he high-water marks, and forcing it under and against the trestle with a rapidity and pressure that it would not otherwise have acquired. These facts are brought out in detail by the testimony of Quinn Walker, the county surveyor, who was first a witness for appellees and after-wards for appellant. See, also, the testimony of appellant’s civil engineer, Gale Oliver. These two witnesses, after the 1916 flood, made the surveys for the map shown at page 75, and both say the map is correct. ‘That would be a tremendous pressure there,’ said Walker, ‘when that 2,000 feet of water on one side and 1,000 feet on the other was all forced to go through that one-fourth space. The bridge knocked down trees below there. Some of the trees that it knocked down were not much smaller than the stove. It knocked them flat. ,That showed that the water had a tremendous pressure.’
"Elm creek and its tributaries constitute the drainage outlet for a wide scope of country above and west of the railroad, and the creek had been subject to sudden overflows long prior to the flood of 1915.
“It was established by the undisputed evidence, and so admitted on page 8 of appellants brief, that the vacant block of land below the railroad, adjacent to the right of way and opposite the trestle, consisting of about six or eight acres, according to Charlie Angell’s estimate, where Ed Behne and his companions were fishing and where Ed came to death, and through which ran the public graveled road, was habitually used by the traveling public as a camping ground and as a common resort for fishing and picnic parties.
“Manuel Behne, the only member of the party who survived the disaster, relates the circumstances thereof substantially as alleged in the petition.
“The tree that, the three Behne brothers had climbed was four. feet in circumference, and stood at the edge of the public road. It was ‘right in the edge of the clearing of the road,’ and at the place where another road led off down the valley from the main road. This other road ‘had been used there for several years by people going down in there fishing and camping’ and going after wood, and was the route by which the Behnes, in their attempt to escape the flood, had reached the main road where the disaster occurred. Ed Behne’s position in the tree was about 10 feet above the water. The two younger brothers were higher up in the tree. They all were ‘safe out of the water so far as water was concerned.’ What happened then is told by Manuel Behne as follows, bearing in mind that when he speaks of the ‘bridge’ he says he means the trestle:
“ ‘After we got in the tree the trestle or bridge of the San Antonio & Aransas Pass Railway gave way. The bridge just gave way and washed right against the tree we were in. When it hit the trees it shook us out of them. My two brothers and I fell on the bi’idge. When we fell on it, it slided on further and turned over. My younger brother’s age was 14 years. He and I fell on the bridge together. When the bridge turned over he went down in the water and never did come up. We have never found him since. The, older brother (Ed) was found later. He was dead. We were up in the tree something like one-half hour before the bridge fell down. The water was rising pretty rapidly. The bridge also knocked down other trees there. Yes) sir; I mean the trestle. Old Man Brunson fell on the bridge too. He drowned. They all drowned but me. After the bridge turned over and threw me off, I got in another tree. That tree was about 250 yards from the one I first got in. I got in that tree and stayed there until' next morning. Some one came and got me out then. Mr. Angelí and Mr. Majors came in a boat and got me. I never saw my younger brother any more after he went under the water.’ And again: ‘When the bridge hit the tree it knocked us out. The tree is flat down, lying on the ground. It was torn up by the roots. It is out there right now.’ Brunson was in another tree about 20 feet from the one which the boys had climbed. No trees were broken down above the railroad track.”

Opinion.

Without considering in detail all the assignments of error, we announce our conclusions as to the merits of the appeal as follows:

. The statute of this state (Rev. St. 1911, art. 4694) creates a cause of action in favor of near relatives when the death of any person is caused by the neglect or carelessness of the proprietor, owner, charterer, or hirer, or receiver, or other person in charge or control of any railroad, or other common carrier, or by the unfitness, neglect, or carelessness of their servants or agents. And by another statute (article 6495), which is mandatory in its terms, it is declared that “in no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices, as the natural lay of the land requires, for the necessary drainage thereof.” While the main object of the enactment of the latter statute may have been the protection of the rights of landowners, still it is not so limited by its tennis, and is broad enough to include every other injury wihich results directly from a failure to comply with its terms. Ry. Co. v. Johnson, 65 Tex. 389; Ry. Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 399. So, if it be true, as alleged in plaintiffs’ petition, and as in substance found by the jury, that in the construction of its roadbed across Elm creek and the -valley thereof appellant failed to leave sufficient openings to permit the flow of water as required by the natural lay of the land for the necessary drainage thereof, and that as a result of such failure the accumulation of flood waters produced such pressure upon the trestle as caused it to collapse, float down the stream, and knock the deceased out of the tree in which he had taken refuge, and thereby caused his death, then appellant should be held liable to appellees, unless it be, as contended by counsel for appellant, that the failure of appellant to perform its statutory duty in the construction of its roadbed was not the proximate cause of the death of the deceased.

Without accomplishing any very satisfactory results in many instances, a great deal of effort and learning have been expended by the bench, the bar, and text-writers in attempting to elucidate the subject of “proximate c-ause.” In Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, Chief Justice Gaines deprecates the use of the word “proximate,” because of the fact that in ordinary language a proximate cause is the nearest while, as he points out, in a legal sense an act of negligence may be deemed a proximate cause of an injury, although it may not be the last cause in a connected succession of events which have led to a result. But, in discussing the doctrine of anticipated results, the opinion in that case seems to be out of harmony with other opinions of the same court as well as the weight of authority.

In that case the plaintiff had delivered to the railway company certain cattle for shipment, and they had been placed in a pen provided by the carrier for that purpose. The gate which admitted entrance into the pen was out of repair, which fact had been known to the carrier for several months. The appliances for fastening it were defective, which condition was due to the negligence of the company. In order to prevent the escape of the cattle from the pen, the plaintiff, who was the owner of the cattle, was in the act of fastening the gate with a rope, when the noise of a passing freight train so frightened the cattle as to reduce them to a condition of panic, causing them to plunge upon the gate before the plaintiff could escape therefrom, and as a result he was hurled some 20 feet from the ground and injured. But for the defective condition of the gate, the cattle would not have escaped. The Supreme Court held that the conduct of the defendant in permitting the appliances for fastening the gate to be out of repair was not the proximate cause of the plaintiff’s injuries. That holding was based upon two grounds — one being that the negligence in reference to the gate was not the primary or efficient cause of the injury, and the other and main reason being that the injury was so remote and improbable as that the railroad company was not required to foresee and guard against it; and in the course of the opinion Judge Gaines said:

“It ought not toi be deemed negligence to do or fail to do an act, when it was not anticipated and should not have been anticipated that it would result in injury to any one. To require this is to demand of human nature a degree of care incompatible with the prosecutions of the ordinary avocations of life. It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed. * ⅜ * It follows, ⅞ * * the question of probable cause (meaning proximate cause) ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have. anticipated * * * some like injury,” etc.

Judge Street, in his excellent work on Personal Injuries in Texas (see section 45), deals with the doctrine of anticipated consequences in such a satisfactory manner that we make the following extended quotation from that book:

“It is universally true that, for negligence to be actionable, injury must be ‘observable and preventable,’ except where declared by positive law. The rule with reference to the anticipation of consequences has been thus often stated: The defendant is liable for injuries proximately caused by his act or omission when injurious consequences to others could, under the circumstances, have been foreseen by a person of ordinary prudence in the defendant’s position at the time as a reasonable probability. Unless injury could have been foreseen as reasonable or probable, the act or omission, if otherwise innocent, does not become negligent except it be made so by positive law; that is to say, by statute or city ordinance. Hence the mere intervention of a cause or causes that might reasonably have been foreseen will not break the causal connection between the original cause and the injury. By the foregoing statement it is not meant that the defendant would be liable only to one whom his negligence was consciously likely to injure; for he is liable to any one, known or unknown, injured by a violation of a duty he owes to the public or to all persons in a given situation or relation. ¡Chief Justice Gaines, in the Bigham Case, ante, says: ‘It ought not to be deemed negligence to do or fail to do an act when it was not anticipated and could not have been anticipated that it would result in an injury to any one. To require this is to demand of human nature a degree of care incompatible with the transaction of the ordinary vocations of life. It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.’
“This is undoubtedly a correct statement of both the law and the reason for it. But it is a clear non sequitur to say, as the opinion continues, ‘it follows ⅜ ⅜ * the question of a probable cause,’ meaning proximate cause, ‘ought to depend on the further question whether a reasonably prudent man, in view of all the facts, would have anticipated * * ⅜ some like injury,’ etc. Anticipation of ‘some like injury’ is not a logical equivalent of anticipation of some, in jury; and the legal and ethical reasoning which makes liability depend on the reasonable anticipation of some injury does not support the proposition that it should be limited to an injury like that which might have been expected. No doubt that actual injury is generally like that anticipated, for it must be a natural and-proximate result of a given act or omission under conditions that are either known or should have been. But non constat that it must be so. Without the citation of a ease or text-writer, the court adopts this conclusion in an opinion otherwise replete with quotations and citations. If correct, it restricts liability to injuries that are usual or ordinary, and excludes those that arc unusual or extraordinary, though natural and proximate; that is to saj;, extraordinary results effected by the operation of natural laws. It is believed that the true rule is: ‘It is sufficient if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.’
“The subjoined extract from Beven on Negligence discloses the attitude of the English courts on the subject:
“ ‘In the argument in the Exchequer Chamber-much stress was laid by the defendants on the dictum of Bramwdl, B., in Blyth v. Birmingham Waterworks Co.: “It would be monstrous to hold' the company liable for negligence because they did not foresee an event that -was so remote from probability that for many months it could not be found out what was the cause of the injury to plaintiff’s premises.” Thus, Channell, B., in giving judgment, explained thus: “I quite agree that, where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not, and this is what was meant by Bramwell, B., in his judgment in Blyth v. Birmingham Waterworks Co.“but when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not.” And this opinion was adopted by Blackburn, J., in his judgment. “What the defendants might reasonably anticipate is,” said he, “only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence.” “If the negligence were once established, it would be no answer that it did much more damage than was expected.”
“ ‘This decision establishes that, when negligence is once shown to exist, it carries a liability for the consequences arising from it, whether they be greater or less, until the intervention of some diverting force, or until the force put in motion by the negligence has itself become exhausted. In discussing it confusion has been caused by not separating the two points which were mainly argued: (1)
Was there any evidence of negligence to leave to the jury? (2) If there was evidence of negligence to go to the jury, for how many of the consequences flowing from the negligence wore the defendants liable? * * * Negligence being shown, the person guilty is answerable for all the consequences, “whether he could have foreseen them or not.” ’
“Referring to his own explanation of the case of Lee v. Riley, where the plaintiff, on account of the defendant’s neglect to keep a fence in repair and his mare’s escaping and kicking the plaintiff’s horse to death, was held entitled to recover though there was no evidence of the mare’s vicious disposition, Mr. Beven speaks of the decision as all-important for understanding this branch of the law, because indicating a distinction ‘between acts from which injurious consequences in the result flow to others, but which are not negligence in law, because these consequences would not antecedently have been anticipated to flow as natural results,' and acts which carry liability because their probable outcome is injurious acts, though in fact the consequences which flow are not those anticipated.’ He says ‘an act is negligent if the doer of it, by thinking, might anticipate loss and injury as a natural and probable consequence to some third person with regard to whom or his property he had a duty not to be negligent. Further, the doer of a negligent act is responsible for the consequences flowing from it in fact, even though antecedently, to a reasonable man, the consequences that do flow seemed neither natural nor probable. As Tindal, C. J., shortly states the principle in the Exchequer Chamber, in Barrow v. Armand, ‘ the defendant “should answer for all the loss resulting from his act.” But a .man is not responsible for the consequences of an act (not a trespass) from which the ideal reasonable man would not anticipate injurious Consequences in fact to follow. The doing of the act is not blameworthy; therefore the consequences are irrelevant.’ ‘Where an act is negligent, it is not necessary, to render it the proximate cause, that the person committing it could or might have foreseen the particular consequence or precise form of the injury, or the particular manner in which it occurred, if by the exercise of reasonable care it might have been foreseen or anticipated that some injury might result.’
“In the discussion of proximate cause the learned authors of Shearman and Redfield on Negligence say: ‘So much difficulty, indeed, has been felt in attempting to lay down a rule to cover all possible cases, that some of the ablest judges have declined to state any fixed rule, and have indicated a disposition to leave all doubtful cases to the jury. The practical solution of this question appears to us to be that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not), would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind.’
“The proposed rule, limiting liability for negligence to consequences that could have been foreseen, is tentatively advanced by the learned author of Watson on Damages for Personal Injuries. He seeks, however, especially to guard the reader against its too easy acceptance by directing attention to the fact that no one questions the affirmative aspect of the rule, that is, that every one is liable for all injurious consequences of his negligence that might have been foreseen as reasonably probable, and reminds him that the proposed rule is only ‘means to an end’ — a means of determining whether or not in a particular case the injuries are natural and proximate or otherwise. Mr. Watson concludes that no ‘more is ever necessary than that injury in some form or other was or might have been foreseen.’
“In Armendaiz v. Stillman et al. the action was for negligently injuring plaintiff’s land by the construction of a jetty in the Rio Grande river. With respect to the defense that, ‘with ordinary prudence and foresight and judgment, defendant could not foresee that said “Field’s Jetty” was at all likely to produce, occasion, or cause any damage. * ⅞ * to plaintiff’s property,’ the court, by Justice Stayton, says: ‘The defendants are liable for such injury as the plaintiff has sustained by their act, without reference to the degree of care used by the defendants, or their ability to foresee what would be the result of their acts, or to their intentions.’
“In the case of Gulf, Golo. & S. E. Ry. Oo. v. Southwick, in response to the contention that though defendant may have been guilty of a violation of duty to the plaintiff, yet if the injury inflicted, death of the wife, could not have been foreseen as a probable result, it could not be held liable, the Court of Civil Appeals, by Associate Justice Pleasants, said: ‘But we do not concur in this proposition. It may be conceded that the death of Mrs. South-wick could not have been reasonably anticipated from the use of the stool; yet if the use of the stool was negligence on the part of the defendant, without contributory negligence by the deceased, and the injury was the proximate result of that negligence, and such injury resulted in death without fault or neglect of the injured in the use of remedies, the defendant, by the terms of the statute, would be liable.’ It is familiar that no action lies under the statute except where it would have existed at common law had the injury inflicted not resulted in death. • ‘The law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen.’
■ “If the rule announced in the Bigham Case is to be understood 'as limiting responsibility, for negligence already ascertained, to consequences that could have been foreseen, then it is a return to the doctrine of the overruled and universally discredited cases of Ryan v. N. Y. Centr. By. and Penn. By. v. Kerr, to the effect that negligence entails no liability for extraordinary consequences, although caused by natural laws. But, in the view of the writer, this would be a misinterpretation of the decision. The court says: ‘It ought not to be deemed negligent to do or fail to do an act when it was not anticipated and could not have been anticipated that it would result in injury to any one.’ Beyond all controversy this is a correct statement of. the law in determining the character of an act or omission, in ascertaining whether it is negligent or not. If it be lawful — that is, not contrary to statute or ordinance, and otherwise innocent except for the consequences it entails — then foresight of harm is necessary to its denouncement as negligence. But if negligence exists, as in the violation of a statute, where, as in Texas, such violation is negligence per se, or in the violation of any other duty, as in the furnishing of an insecure cattle peD by a common carrier, foresight of the kind.of injury likely to be inflicted is not a rule of determining the consequences for which a negligent defendant will be liable. Admitting the negligence, as is done in the Bigham Case, the consequences for which the defendant is liable are such as are natural and proximate, and not such as are merely ordinary and probable. The consequences for which he is liable in such case are to be ascertained in the same manner as the damages for an injury negligently inflicted generally; that they are unexpected, unusual, oy extraordinary is only for the consideration of the jury in determining whether they are natural and proximate. By a violation of duty to the plaintiff, the defendant is guilty of negligence; the further enquiry relates to the injury and damages thereby inflicted. Actionable negligence is a breach of duty with injury naturally and proximately resulting; in final analysis those who claim that a negligent defendant is only liable for such injuries, or such like injuries as could reasonably have been foreseen as probable, in effect contend for the substitution of the term ordinary and probable for natural and proximate.
“It should be borne in mind that this so-called rule of the anticipation of consequepces ■is itself only interpretive of the general doctrine of natural and proximate cause. Its chief usefulness is to confirm and verify conclusions independently reached. It is vague and indefinite, and often furnishes confirmation of opposite conclusions reached by different minds, equally honest and sincere, from the same data; and hence is wanting in the essential element of a true rule — reasonable certainty. It is too capable of being used as a mere pis aller. Rightly understood, it applies only to acts or omissions not merely lawful in the sense of not being denounced by law or not being actionably negligent, but such as are innocent and not blameworthy or culpable. It is inapplicable where the act or omission is unlawful, or the injury has been willfully or wantonly inflicted, or is a direct and immediate result of the defendant’s negligence.
“Thus, in the Bigham Case, because the original act of the defendant in permitting the fastening to the gate of its cattle pen to become insecure, though negligent, was, it is said, ‘lawful,’ it is held that the failure to provide a secure fastening gave no right of action for injuries that could not have been reasonably foreseen; implying that if leaving the fastening of the gate insecure were an unlawful act, the defendant would have been liable if the injuries were naturally and proximately caused thereby, whether the probability of injuries of the character inflicted could have been foreseen or not. That this was the intention of the court is confirmed by the express approval in the case of the principles announced in the Gonzales Case. The main principle there announced, and doubtless the one here referred to, is that, if the act or omission of the city is unlawful, ‘it will be liable for an injury resulting from an unforeseen concurring intervening cause.’ ”

In the present case proof shows that persons were in the habit of resorting to the place where the deceased and his two brothers were camped, and therefore appellant was required to anticipate that a sudden overflow of the stream might prevent one or more persons who were camping at that place from making their escape in the usual way, and result in such persons seeking protection by climbing trees; and that, in the event of the trestle breaking loose and washing away, in floating down the stream it might tear down trees in which persons had taken refnge. We do not hold that, in order to create liability, it was necessary for appellant to have anticipated that some person would probably he located in a tree top on such occasions, nor do we believe that the law requires such a holding in order to establish liability. It should have anticipated those things which might happen,, even if such occurrences would be unusual.

The trial court left it to the jury to determine whether or not appellant failed to comply with the statute in the construction of its roadbed, and whether or not such failure was the proximate cause of the death of appellees’ son, and we hold that that procedure was proper, and that the court should not have instructed a verdict for appellant, and in support of that conclusion we copy from appellees’ brief the following summary of certain Texas cases, all of which tend to support the ruling referred to:

“An ice company negligently constructed and maintained a blowpipe in connection with its machinery, which extended out to the right of way of a railroad company, and from which steam, etc., was emitted. A child was on -the right of way near the end of the pipe and was killed by the discharge of steam and mild through the pipe. Defendant was not aware of the presence of the child, and asked the court to charge that, if she was on the right of way, defendant would not be liable. The court, through Justice Speer, held the charge properly refused, because it ignored the further issue that, ‘even the right of way at this place was a public place, traveled and frequented so generally by the public, including children, as that appellant ought, in the exercise of ordinary dill-gence, to have anticipated their presence at that place.’ The opinion refers to City v. Pitts [102 Tex. 1, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843], several times cited by appellant in this case, and other similar cases, and says they ‘support the general proposition that one does not owe a duty in the construction and maintenance of his structures or operation of his business to guard against trespassers, but they do not intimate to the contrary of the principle above announced, that such person would owe a duty to that part of the public whose presence, under the facts of the case, ought reasonably to be anticipated. They recognize such doctrine.’ A writ of error was denied. Orient C. P. I. Co. v. Edmundson, 140 S. W. 124.
“A dealer in fireworks, having some damaged stock unfit for sale, deposited it as rubbish on a block of land, the private property of another, where there was a pecan grove near a public highway to which boys, either as trespassers or invitees, were accustomed to resort in search of pecans, during the season when pecans were falling. The premises were inclosed with a wire fence, and were entered through a gate near the residence of the person in charge, whose duty it was to keep off trespassers. Notices showing that the promises were posted were to 'be seen at different points over the fence and near 'the gate. A boy visiting the premises found and appropriated a piece of explosive, and while on his way home with it, wishing to divide the piece with- a companion, struck it against a rock, causing an explosion that injured him. The court reversed an instructed verdict for the defendant, and held that the jury should have been permitted to say whether the presence of the boy on the premises should have been anticipated, and whether the injuries were the proximate result of the negligence. Little v. James McCord Co., 151 S. W. 835.
“Two sections of a freight train became uncoupled in a ravine and at a place where people were accustomed to pass, resulting in the death of a person who was ' either on or near the track. Whether defendant should have anticipated the occurrence ‘or some like injury to some one,’ on account of the public nature of the place, was a question for the jury, and an instructed verdict for defendant was reversed by the Supreme Court in an opinion by Judge Gaines. Washington v. Ry. [90 Tex. 314], 38 S. W. 764.
“A lineman in the employ of an electric company, while at work on an awning in front of a store assisting in erecting a pole, came in contact with an uninsulated wire strung over the awning belonging to defendant, which was heavily charged with electricity, and was killed. Because the trial court refused to permit plaintiff to prove that the awning had been frequently used by persons going on the roof to repair and paint the awning, to paint the walls of the building, and to put in telephone connections, an instructed verdict for the defendant was reversed. Rucker v. Sherman Oil Cotton Co. [29 Tex. Civ. App. 418], 68 S. W. 818.
“A water tower in the city of Temple, about 20 feet in diameter and 150 feet in height, was so defectively constructed that it fell to the ground about 3 o’clock one morning, and the rush of water against a house capsized and crushed it, and caused the explosion of a lighted lamp, whereby an occupant of the house was fatally ‘burned. A judgment of the lower court sustaining a demurrer to the petition was reversed by this court in an opinion by Chief Justice Eisher, holding that ‘the petition charges negligence and shows that the damages claimed are the result of such negligence.’ Rigdon v. Temple Waterworks Co. [11 Tex. Civ. App. 542], 32 S. W. 828.
“Sparks were negligently emitted from a locomotive engine and fell on the clothing of a child, who was lying in a cradle in her father’s house, and the child was seriously burned. The injury should have been anticipated, and the defendant’s negligence was the proximate cause. Railway v. Johnson, 51 S. W. 531; Id. [92 Tex. 591], 50 S. W. 563.
“In violation of a statute, a railroad company permitted dry grass to accumulate on its right of way. Sparks from a passing locomotive set fire to the grass, and the fire spread to the yard of a residence where a child was playing, whereby the child was seriously burned. The negligence in permitting the combustible material to remain on the right of way was the proximate cause of the injux-y. Greer v. Railway [173 Mo. App. 276], 158 S. W. 740.
“A telephone • company, with knowledge that the main travel at a street corner was around and close to one of the angles fonncd by the intersection of the streets, set one of its poles at a distance of 9½ feet from this angle, leaving a passage of that width between the pole and two posts which stood in the angle. Plaintiff’s wife attempted to drive a gentle horse through this passage, and as the vehicle was passing between the pole and the posts the hoi-se threw his head to one side to drive away a fly, causing one of the forewheels of the buggy to strike the pole, throwing plaintiff’s wife from the buggy and injuring her. Held, that the location of the post was the proximate cause of the injury. Writ of eiTOr denied. Tel. Co. v. Billingsley [33 Tex. Civ. App. 452], 77 S. W. 255.
“A railway company negligently jarred and jolted a car loaded principally with fireworks and oil, causing an explosion which resulted in a fire. A fire signal was sounded by some one not connected with the company, and a number of the city fire companies responded for the purpose of aiding in extinguishing the fire, when another explosion occurred which caused the death of a fireman. It was held that the defendant could have anticipated the response of the fireman, and that he might be thus brought within the range of explosion, and that therefore the original negligence in causing the explosion was the proximate cause of the death. Wi-it of error denied. Railway v. O’Leary, 136 S. W. 601.
“Beneath a railroad bridge that spanned a creek there was a passageway through which the plaintiff, within the defendant’s knowledge, and under circumstances indicating its permission, had been accustomed to travel in going from his residence on one side of the railroad to his farm on the other side. The bridge was about seven feet high, and constructed in ‘the usual way,’ with bolts extending from the timbers above down through the stringers, and the ends of the bolts pi-otruded two or three inches below the underside of the stringers. The bridge was so low that a man could not ride on horseback under it without stooping, and all these conditions wei’e known to the plaintiff. At the time of his injury plaintiff was on his way to the farm, riding one mule and leading another, and while he was attempting to cross the right of way the mule he was riding became frightened at a piece of tie lying on the ground, and ran under the bridge, where plaintiff’s head came in contact with the end of one of the bolts projecting below the stringers, whereby he was injured. The jury was held warranted in finding that defendant’s negligence in maintaining the underground crossing as shown was the proximate cause of plaintiff’s injuries. The court, through Chief Justice Connor, said that it must have been within the contemplation of defendant ‘that occasion might arise when some unexpected happening would binng the user (of the crossing) in contact with the low-hanging bridge.’ Railway v. Cardwell, 187 S. W. 1073.
“A carrier undertook the shipment of mules and placed them in a car that was not properly bedded. The plaintiff accompanied the shipment, and it was contemplated by the conti-act that he would have occasion at intervals to enter the car for the purpose of safeguarding the mules. After the car had been transported be■yond the defendant’s line of road, and while it was being handled by a connecting carrier, it was detached from the train and placed on a switch track in the yards. On discovering that one of the mules was loose, plaintiff went into the car and retied the mule, and just as he was turning to leave the ear a ‘string’ of cars_ was negligently driven against the car containing the mules, throwing one of the mules to the floor. In falling the mule struck the plaintiff, threw him to the floor, and fell upon him, to plaintiff’s damage. The negligence of the defendant, the initial carrier, in failing to properly bed the car, was a proximate cause of plaintiff’s injuries. Writ of error denied. See 185 S. W. p. xv, col. 3; Railway v. Ryon, 177 S. W. 525.
“A carrier negligently left a depression in a depot platform. A passenger, in attempting to go around the depression, which was then filled with water, was struck by an engine and knocked against a third person, who was thereby hurled against the handles of a truck on the platform. The negligence of the cax-rier, in leaving the depression in the platform, was the proximate cause of the injury to the third person. In this case the trial court instructed a verdict for the defendant, and the case was reversed by the Court of Civil Appeals at Ft. Worth. The next trial in the court below resulted in a verdict for plaintiff, which was affirmed by the San Antonio court. Railway v. Harrison [56 Tex. Civ. App. 17], 120 S. W. 254; Harrison v. Railway [49 Tex. Civ. App. 467], 109 S. W. 442.
“A railroad company was maintaining a defective track and defective couplings on its cars. By reason of one or both of such causes, a string of cars attached to an engine broke loose and was speeding down the track at the rate of 12 or 15 miles an hour, when a switchman undertook to board the cars in order to set the brakes, so as to prevent collision with another car stands ing at a distance on the track. He had reached a position ‘with his left foot in the stirrup, with his left hand on the support above, with his right hand on one of the rounds of the end of the laddei', and his right foot on an extending uncoupling rod,’ when the collision occurred by which he was injured. The jury were authorized to find that either the defective couplers or the condition of the track was the proximate cause of the injury. Railway v. Cabell, 161 S. W. 1083.
“A locomotive engineer negligently left his engine in a dangerous position, in charge of an inexperienced fireman, who knew nothing of its working or mechanism. ‘Either inadvertently or intentionally,’ the fireman, by some act, set the engine and train in backward motion down a steep grade, resulting in injury to the conductor, who was thrown from the train while attempting to apply the brakes. The negligence of the engineer in leaving his engine was the proximate cause of the conductor’s injury. In this ease the Supreme Court, through Chief Justice Stay-ton, again declares that the question of proximate cause is for the jury, ‘whose finding will not be reversed on grounds purely theoretical.’ Railway v. Mussette [86 Tex. 708], 26 S. W. 1075 [24 L. R. A. 642],
“Plaintiff was repairing a railroad track, when the foreman sent an employe back to signal an approaching train. The signal was given, but either on account of the negligence of the engineer, or the negligence of the company in maintaining insufficient brakes, the train failed to stop, 'and the fireman, apprehending danger of a wreck, jumped from the engine against the Íflaintiff and injured him. The negligence al-eged was the proximate cause of the injury.

Jackson v. Railway [90 Tex. 372], 38 S. W. 745.

“When a piece of coal fell off a passing train, and injured a section hand who was standing 'near the track, the defendant company was not exempt from liability because the injury was not such a result of its negligence as might reasonably have been expected. The court said: ‘The question is not whether an act of this character ever happened before, but, rather, whether, under the circumstances of this case, the falling of a large lump of coal, propelled with great force by reason of the speed of the train, might reasonably be expected to strike and injure some person at a place along the track where he had a right to be.’ Railway v. Wood, 63 S. W. 164.
“At a place on defendant’s railroad track where cattle had been frequently seen, and where people had been accustomed to cross, a fast train, through negligence of the engineer, struck a cow and hurled it through the air so that it struck the plaintiff, a pedestrian, about 19 feet from the track. The negligence was the proximate cause of the injury. Writ of error denied. Railway v. Marchand [24 Tex. Civ. App. 47], 57 S. W. 860.
“An electric light company negligently placed a defective wire, heavily charged with electricity, near a telephone wire which extended into the house of the deceased. The electric wire came in contact with the telephone wire, causing sparks to be emitted from the latter, and the deceased, in attempting to cut the telephone wire with iz-on pinchers for the purpose of preventing a firing of his premises, was killed in the effort.. A verdict for plaintiffs was affirmed by this court, in an opinion by Justice Rice, and a writ of error was denied. Temple Electric Eight Co. v. Halliburton, 136 S. W. 584.
“For a number of years a city had permitted a pile of lumber to remain in the street, and that was the ground of negligence relied upon. A drayman drove his vehicle against the pile, causing lumber to fall against a child playing on the opposite side, of whose presence he was not aware. The jury should have been allowed to say whether the city was negligent as charged, and whether such negligence was the proximate cause of injury to the child. Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284 [31 Am. St. Rep. 17].
“The defendant unlawfully constructed a gangway across the street. While the deceased, in his buggy, was passing over the obstruction, his horse was frightened by the noise of a truck on which an employs of defendant was rolling a bale of cotton along the gangway, and ran away, turning the buggy over, whereby deceased was fatally injured. The unlawful obstruction of the street was the proximate cause of the injury. Among other decisions, the opinion cites the Gonzales Case, supra. Writ of error denied. Shippers’ Compress Co. v. Davidson [35 Tex. Civ. App. 558], 80 S. W. 1032.
“The negligence of a railroad company in overcrowding its cars, compelling a passenger to ride on the platform, from which he was pushed by the jostling of other passengers, was a proximate cause,’ the casualty being one which the company might reasonably ' have foreseen, though it could not have foreseen the particular circumstances. Writ of error denied. Railway v. Williams [20 Tex. Civ. App. 587], 50 S. W. 732.
“By reason of defects in a railroad track, a train parted while running down a grade. Subsequently the two sections collided and burst open a gasoline tank. When the conductor came forward with his lantern he was injured by án explosion. The jury was held warranted in finding that the condition of the track was the proximate cause of the injury. Chicago, etc., Ry. Co. v. Price, 38 C. C. A. 239, 97 Fed. 423.
“Plaintiff, while riding in a box car, was seated near an open door of the ear. In front of this car was a flat ear carrying lumber, that had been loaded in a negligent manner, and while it was being transported in that condition a piece of lumber fell or was thrown from the flat car and struck the plaintiff. The defendants had requested a charge to the effect that they would not be liable if it could not have been anticipated ‘that plaintiff would have been injured’ on account of the negligence, and the appellate court, through Justice Neill, said: ‘It may be true that the accident was of such extraordinary form that, under its peculiar circumstances, it could not have been expected to happen to plaintiff, sitting where he was; yet the loading of the car, without using any diligence to fasten the lumber thereon, and receiving it and carrying it in the train, with the unfastened lumber, was negligence, for it threatened danger in many directions. Therefore, as is said in T. & P. Ry. Co. v. Carlin, 111 Fed. 777, 49 C. C. A. 605, 60 L. R. A. 462, it was liable to produce familiar results which would cause serious injury. The fact that it happened to cause the injury in a manner so unusual that it was not to be expected does not prevent the act from being negligent, when it was likely to cause injury in a way that might be foreseen. It may be true that the negligence in the case produced an effect not before observed, the circumstances of which could not have been anticipated. But if the negligence was liable to produce other and familiar injuries, the peculiarity of the accident does not prevent liability. The opinion quoted was on a writ of error sanctioned by the Supreme Court of the United States, and is in accord with all of the textbooks on negligence, and in harmony with the decisions of the courts of last resort in this state.’ Writ of error denied. See 98 Tex. 615. Railway v. McComus [36 Tex. Civ. App. 170], 81 S. W. 760.”

Most of the cases referred to have dealt with the question of proximate cause when liability was. predicated upon common-law negligence, but some of them indicate a distinction between liability based upon negligence and liability predicated upon failure to perform a statutory duty, and state that in such cases as fall within the latter class the defendant is'liable for every injury which results from such failure, regardless of whether or not any such injury could have been anticipated. This doctrine we regard as sound and just. It seems to this writer that the cases which have denied liability for unlawful conduct, unless the particular injury, or one of similar character, could have been anticipated, do not rest upon a sound basis. There is no equity in favor of a wrongdoer, and the dictates of justice do not require that he should be relieved from liability for any injury which has resulted directly from his wrongful conduct. On the contrary, a wrongdoer, having no equity in his favor, is not entitled to any special consideration or protection at the hands of the court; and, if his wrongful conduct has caused injury to another, it is nothing but right that he should be required to respond in damages, although he could not have anticipated the particular injury or one of like character. And this is particularly true where the wrongful conduct complained of is prohibited by statutory law. The courts ought not to encourage the violation of a mandatory statute by teaching a doctrine which would say to those who are required to comply with its terms that if you fail to do so, no matter how much injury may result, you will not be held liable, if such injury is not usual or probable, and therefore not anticipated. A more wholesome and just doctrine, and the one believed by this court to be sound, is to declare that those who fail to comply with statutory requirements will be held liable for all injuries which result directly from such failure.

The other questions presented in appellant’s brief have been duly considered, and are decided against appellant.

No reversible error has been shown, and the judgment is affirmed.
      igsnFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes