The opinion
W. O. MURRAY, Chief Justice
(dissenting) .
I am unable to concur in the opinion of the majority. Appellant, by the third and fourth paragraphs of his answer, plead the negligence of the parents in permitting their three-year-old son, Gregory Vraden-burg, to run ahead of them and to go into a place of danger as the sole proximate cause of his injuries. The trial judge sustained special exceptions to these two paragraphs. By trial amendment, appellant plead the act of the parents in permitting their three-year-old child to go into a place of danger as the sole proximate cause of his injuries, whether the act was one of negligence on the part of the parents or not. The trial amendment was also stricken out by the sustaining of the special exception to it.
Thus we have presented in this case the clear cut question of whether or not the act of a parent or other custodian of a child in permitting it to go into a place of danger may ever be plead as a sole proximate cause of the injury to such child. The act alleged to be the sole proximate cause need not be a negligent act. Dallas Railway & Terminal Co. v. Guthrie, Tex.Civ.App., 206 S.W.2d 638 , reversed on other grounds, 146 Tex. 585 , 210 S.W.2d 550 ; Hicks v. Brown, 136 Tex. 399 , 151 S.W.2d 790 .
The rule with reference to the defense of sole proximate cause is well stated by Mr. Associate Justice Norvell in Heard & Heard, Inc. v. Kuhnert, Tex.Civ.App., 155 S.W.2d 817, 820 , as follows:
“It is well settled that upon a trial of the merits of a negligence case, when the evidence is sufficient to sustain findings that the ■ sole proximate cause of plaintiff’s injuries was the action of a third party, the trial court upon proper request must submit said issue of sole proximate cause to the jury. Horton & Horton v. House, Tex.Com.App., 29 S.W.2d 984 , holdings approved by the Supreme Court; Schumacher [Co.] v. Shooter, 132 Tex. 560 , 124 S.W.2d 857 ; Parker v. Jakovich, Tex.Civ.App., 115 S.W.2d 790 ; Collier v. Rives, Tex.Civ.App., 103 S.W.2d 830 ; 41 Tex.Jur. 1122, § 283.
“Prior to September 1, 1941, this issue was available to the defendant under a general denial. Schumacher [Co.] v. Shooter, supra. (See Rule 279, R.C.P.)
“A finding favorable to the defendant upon such an issue is a finding that the material allegations of plaintiff’s petition are untrue, including the allegation that the proximate cause of plaintiff’s injuries was an act of negligence attributable to the defendant. Horton & Horton v. House, supra.
“The issues of ‘sole proximate cause’ and the somewhat similar ‘unavoidable accident’ go to the rebuttal or destruction of the plaintiff’s cause of action and not merely to the avoidance of liability. The plaintiff must negative their existence. Such issues are clearly distinguishable in nature from the affirmative defense of contributory negligence. This is apparent from the authorities above cited. As to contributory negligence, see Koons v. Rook, Tex.Com.App., 295 S.W. 592, 597 ; 30 Tex.Jur. 811, § 135; Martin v. Cable, Tex.Civ.App., 140 S.W.2d 894 .”
It is contended, however, that to permit the appellant in this case to raise the issue ■of sole proximate cause would be in effect to permit him to impute the negligence of the parents to their three-year-old child. *876 The rule in this State is that negligence of the parents is never to be imputed to their infant child who has not yet arrived at the .age of discretion where he can- be expected to look after his own safety. For this -reason the .negligence of the parents in permitting a child to go into,a place of danger is never to be plead as contributory negligence to bar. a recovery by the infant child in a suit instituted solely for his own benefit.
However, the rebutting issue of' sole proximate cause does not impute the negligence of' the 'parents to the infant child and hold him responsible therefor, thereby barfing his recovery, but it rather has the effect of rebutting or destroying the cause of action asserted by the plaintiff. Here we do not come to the question of proof because the trial judge as a matter of law sustained exceptions, to both the allegations of . defendant’s answer and to . his, trial amendment, and therefore he .yeas, never given an opportunity, to, offer pr.oof upon the question of sole proximate cause. ,.
However, there was evidence introduced during the trial which had the effect of raising the question of sole proximate cause. In determining whether or not the question was raised we .must look at the evidence in a light, most favorable t<? the appellant. The evidence shows that appellant maintained a grandstand at the Shadowland Race Track from which spectators could view the races in safety. In front of this grandstand was a cyclone fence supported by two steel cables, and there is no contention that there was any danger of one of these racing automobiles going through this cyclone fence. He'mairitained a playground in back of the grandstand' tvhere children could be kept in safety.1 There were continuous announcements over the loud speaker advising the- spectators that it was dangerous to stand near the barrier fence and that they must keep back away from it. The barrier fence was composed of two steel cables strung upon cedar posts set in concrete and the expert .testimony was to the effect that this was the best type, of fence for the purpose of protecting the ’spectators arid the drivers of the hot rods because it would have a tendency to give and spring the hot rods back onto the- race course. The barrier fence was set thirty-five feet away from the race course, thus; creating an area thirty-five feet wide- between the spectators "and the race course. The race course was a S/8 of a mile oval shaped track, and ■the races were run at a maximum speed of from fifty-five miles on the turn to eighty-five miles per hour on the straightway. There was also evidence' that the -barrier fence did not break and that the lower cable caught' the wheel of the- hot rod and the hot- rod came to rest with it9 front wheel against the lower steel cable. ■ If this evidence'had been believed by the jury they could easily have concluded that appellee received his injuries without any negligence on the part of appellant, -and this> would have brought them to the conclusion that the. sole .proximate cause-of appellee’s injuries was the failure of his parents to properly, supervise him and- their taking him from a zone of safety to a zone -o-f ..danger... . • ■ ,
. It is true that the jury ;found that appe'l-larit-was guilty of negligence,. but in passing upon the question of whether or not the appellant had the -right to plead the issue of'-sol’e proximate cause and have it submitted to the-jury, we must view the situation as it existed before the charge was read to the' jury and before the answers :of.the jury were returned.- The conditions as .they existed before, not - after, the verdict must control. 41 Tex.Jur. 1117, § 280; Adams v. Corder, Tex.Civ.App., 205 S.W.2d 608 ; Montgomery v. Gay, Tex.Civ.App., 212 S.W.2d 941 .
In denying to appellant the right to plead and offer evidence raising the -issue of sole proximate cause .he was denied a valuable right, and in doing so the - court, in my opinion, committed -reversible error. In Southwestern Bell Telephone Co. v. Doell, Tex.Civ.App., 1 S.W.2d 501 , 506, a six-year-old boy was injured while riding in an automobile driven by his older brother alleged to have been contributórily negligent in driving at an excessive rate of - .speed when struck by a4 truck. It was held-by the Fort Worth-Court of Civil Appeals that the negligence of the driver, if any, was not imputable to the child. The Court said: *877 “We do not think that, under-the facts, the negligence, if any, of the driver of the Ford sedan, should be imputed to -the plaintiff, unless it was the ‘sole proximate cause’ o.f the injury; then, of .course, it would not be im--putable.” .. ■ ■ . . .
In 29 Tex.Jur. 103, paragraph S3, the following statement is found: “Where contributory negligence ' is out of ’ the" case by reason of the statutory provisions cited, pleading and proof that-the servant's own act was the sole próximate- cause of the injury constitutes á good defense, since the allegations that the injury was caused' by the master’s negligence is ,to be negatived.”
In Fox v. Chicago, St. P., M. & O. R. Co., by the Supreme Court of Minnesota, 121 Minn. 511 , 141 N.W. 845, 847 , the.'Court said: “Of course, if the father was negligent/and his negligence was the sole cause •of the injury, there would be no’room for liability on the part of defendant. No such situation is presented here.”
In Northern Texas Traction Co. v. Thetford, Tex.Civ.App., 28 S.W.2d 906, 910 , the Court said: “In this connection- we ’ will note that, while the-jury found Mrs. Thet^ ford,, the driver of t-he -car, to have been negligent in attempting to drive past the point'of collision at the-time and in the manner -in which she did, it was'yet found by the jury that such negligence was not the sole proximate cause of the collision, it thus appearing that-at most the negligence of the mother was'but a:'concurring cause of negligence with that' of the-streetcar drivj er, both operating in injury to the minor child who was without negligence, a condition of the case which, if unaffected by erroneous charges, objectionable evidence, or other erroneous proceeding, supports the judgment below.” . ..
In Ross v. Haner, Tex.Civ.App., 244 S.W. 231, 235 , the Court said:1 “The continuing negligence on the part of his parents to make the repair does not, as a matter of law, affect his right under said contract, unless such negligence constituted the sole proximate cause of his injuries. This-was a question for the jury, and was decided by them against appellants’ -contention.”
• The above case strongly indicated that the negligence of a parent or other, custodian of a child in permitting him to go into a; place of dangqr, which cannot be .plead as-contributory-negligence because the negligence of the parents can'neyer be imputed to the child, may nevertheless -be plead .as-sole proximate cause. I have found nd authority holding to the -contrary. ,
In the majority opinion thp c.ase of Terrell Wells Health Resort v. Severeid, Tex.Civ.App., 95 S.W.2d 526 , is cited as authority for the proposition that the, act or ijqgligence, of the parent or, custodian of an .infant child cannot.be relied upon as sole proximate cause. It is true the case does so hold, but the only reason given for the holding is that the negligence of a parent qr custpdian cannot be imputed to the infant, which is. indubitably the law. The court, seemed- to have, entirely overlooked the fact that in Reading the negligence of the.custodian as,so-le proximate cause you are not .attempting to impute the negligence of the parent, or, custodian to the.infant, but simply rebutting the cause of action al7 leged by the .plaintiff. The .Court in its opinion :had previously reversed the cause on other grounds and what, was said with reference to the issue of. sole proximate cause may very properly be regarded as obiter dictum,.,,
Also, in this connection,, the majority-opinion cites., the cases of Kelley v. Texas & P. Ry. Co., Tex.Civ.App., 149 S.W. 349 , and Galveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64 . The Moore -case.is based entirely... upon the proposition, that the negligence, of the mother cannot be imputed to the infant and no question pf. sole proxi7 mate cause seems to have been raised in that-case. ...
• In the Kelley case complaint -was made of a certain charge given by the court to the jury, the court in speaking of this charge said: “It is in effect imputing the negli1 g'ence of the mother to the plaintiff. This cannot be done.’.’ I -have no quarrel with this holding of the court. Such is conceded to be the law. . .
It is my opinion that the trial judge committed reversible' error when he denied to *878 appellant the right to plead and offer proof to the effect that the negligence of the parents in permitting the minor appellee to leave a place of safety and go into a place of danger, was the sole proximate-cause of appellee’s injuries, and that such error calls for a reversal of the judgment herein.
I am also of the opinion that the evidence in this case does not show that appellant failed to keep the premises at the Shadow-land Race Track in a reasonably safe condition for spectators. He furnished them a grandstand in which they could sit with absolute safety." He also maintained a playground in which children could be kept with safety. He*maintained a barrier fence some thirty-five feet from the edge of the race track, which was described by expert witnesses as being the best type of barrier fence known to the automobile racing fraternity, which consisted of cedar posts, four inches in diameter at the top, set in concrete, twelve feet apart,- upon which were strung two steel cables ⅝ of an inch in thickness. It is true that the experts stated that ordinarily this cable should be three quarters of an inch in thickness, but they further stated that the cable ⅝ of an inch in thickness was sufficient. There is no evidence that the fence at the spot where the accident occurred was in a bad state of repair, or that appellant had any knowledge of any weakness in the fence. There is absolutely no evidence that the fence was not of sufficient strength to turn the hot rod automobiles, other than the fact that there is testimony that the bottom cable broke at the time of this- accident. The mere fact that the cable broke on the occasion in question is not sufficient evidence to establish the fact that appellant was guilty of negligence in not maintaining a fence of reasonably sufficient strength to protect the spectators. The -evidence does show that this race track had been in existence for some ten years; that this fence had been there during that time, and that never -before had an automobile gone through the fence and injured a spectator. As was said by the Supreme Court of Texas in Houston National Bank v. Adair, 146 Tex. 387 , 207 S.W.2d 374 , 375: “After a careful-examination of the evidence, viewed most favorably to the plaintiff, we conclude that the- evidence is not sufficient to justify the submission of the case to the jury, and that the district court correctly instructed a verdi-ct for the defendant. The mere fact that Mrs. Adair slipped and fell does not establish the bank’s liability; there must be evidence showing that in some way the bank was- at fault and that its fault was a cause of the injury.”
See also Rogers v. Collier, Tex.Civ.App., 223 S.W.2d 560 , and Wells v. Texas Pacific Coal & Oil Co., 140 Tex. 2 , 164 S.W.2d 660 .
The proprietor of an automobile race track is not the insurer of the safety of the spectators who pay admission and attend such races. He-is only required to use reasonable care to have such premises reasonably safe for such spectators. Stein v. Buckingham Realty Co., Mo.App., 60 S.W.2d 712 ; Blashfield’s Automobile Law, Vol. 1, part 2, p. 708, § 763; Arnold v. State, 163 App.Div. 253 , 148 N.Y.S. 479 .
The evidence-here is undisputed that the barrier fence maintained at the Shadow-land track was one of the best type of fences usually maintained throughout the United States by others who are engaged in the business of managing “hot-rod” race tracks. It will be presumed that people engaged in such business are reasonable prudent persons and that the method used by them to make their premises reasonably safe for spectators is a proper method unless and- until the contrary is shown by competent evidence.
In Houston & T. C. R. Co. v. Werline, Tex.Civ.App., 84 S.W.2d 288, 290 , it was stated: “The case of Taylor v. White, 212 S.W. 656, 657 , by the Commission of Appeals, was a suit to recover damages for injuries sustained by falling on a machine; the negligence alleged being the failure to place a guard rail around it. The court said: ‘The custom of others engaged in like business is not the absolute test of negligence, but where the undisputed evidence shows affirmatively, as it does in this case, that the .defendant was -conducting his business in accordance with -the uniform custom of persons engaged in like business, if *879 devolves upon the plaintiff, before he can recover, to produce evidence showing that such custom is negligent.’ To the same effect see City of Teague v. Radford (Tex.Com.App.) 63 S.W.2d 376 ; El Paso [& S.W.] R. Co. v. Foth, 101 Tex. 133 , 100 S.W. 171 , 105 S.W. 322 ; Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 484 , 68 S.W. 159 ; Washington, [& G.] R. Co. v. McDade, 135 U.S. 554 , 10 S.Ct. 1044 , 34 L.Ed. 235 ; Grand Trunk R. Co. v. Ives, 144 U.S. 408 , 12 S.Ct. 679 , 36 L.Ed. 485 ; Union Pac. Ry. Co. v. Daniels, 152 U.S. 684 , 14 S.Ct. 756 , 38 L.Ed. 597 ; Canadian No. Ry. Co. v. Senske, 8 Cir., 201 F. 637 ; Merton v. Michigan Cent. R. Co., 150 Wis. 540 , 137 N.W. 767, 768 ; 20 R.C.L. § 23, p. 30.”
In Volume 38, American Jurisprudence, page 681, § 34, the rule is stated thus: “The conclusion to be reached upon undisputed evidence which shows that the defendant acted in accordance with the uniform custom of persons engaged in a like business, in the absence of any evidence showing that such custom is negligent, should be that the defendant did not act negligently.”
In 65 C.J.S., Negligence, § 16, we find the following: “Such conformity may even afford a sufficient basis for an inference that proper care was exercised, in the absence of any evidence tending to show that the custom did not involve reasonable care, or unless the common experience of the ordinary, juror would enable him to determine, without evidence on the subject whether conformity to the custom was sufficient care.”
See also, Dunagan v. Appalachian Power Co., 4 Cir., 33 F.2d 876 , 68 A.L.R. 1393 ; Stein v. Buckingham Realty Co., Mo.App., 60 S.W.2d 712 .
Furthermore, the issue submitted to the jury as to appellant’s negligence was not the proper issue. In view of the fact that appellant maintained a safety zone in which appellee and his parents were seated just prior to the accident, and the further fact that there was a fence which kept the spectators from going closer than thirty-five feet from the race course, and the further fact that some of the experts testified that at some tracks no barrier fences at all were maintained, the first question which should have been submitted to the jury was, whether or not, under all the 'circumstances, the appellant owed the duty of maintaining a barrier fence of reasonably sufficient strength to protect the spectators at the spot where the injury occurred. The issue submitted assumed that appellant owed this duty and simply asked the question if he discharged this duty.
For all of the reasons above stated, I respectfully enter my dissent from the opinion of the majority.