The opinion
KEITH, Justice
(dissenting).
I respectfully dissent. The majority, after reviewing the evidence in detail, holds that the jury findings convicting Southwest of negligence have ample support in the evidence. The opinion then considers the question of proximate cause saying: “It [Southwest’s negligence] was a cause in fact, but whether it was ‘foreseeable’ in this type of situation seems to be of first impression in our state.” (Op. p. 392)
Although the legal scholars are in substantial accord that the element of foreseeability is not properly a part of the definition of proximate cause, 1 Texas is firmly committed to its inclusion therein. Clark v. Waggoner, 452 S.W.2d 437, 439 (Tex.1970), and cases therein cited. Indeed, the court examined the question in detail in Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343 , 257 S.W.2d 416, 417-418 (1953), and concluded that Texas should continue to treat foreseeability as a part of proximate cause rather than as an element of the issue of negligence.
Being required by prevailing authority to treat foreseeability as a part of the proximate cause question, I need but turn to the *394 words of Chief Justice Gaines m Texas & P. Ry. Co. v. Bigham, 90 Tex. 223 , 38 S. W. 162, 164 (1896), 2 which are controlling in the case at bar: “In our opinion, nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in injury of the person of the plaintiff.”
Since in the sale of the wheels Southwest was not required to exercise prophetic ken, it should not now be required to respond in damages to plaintiff in this cause. I do not join in the affirmation of the judgment which casts it in liability.
. Bigham was the first case cited by Judge Smedley in Black, supra, approving the in-elusion of foreseeability in the definition of proximate cause.