# Kuemmel v. Vradenburg

> Court of Appeals of Texas · May 23, 1951 · 239 S.W.2d 869

URL: https://www.frixlaw.com/law-library/cases/9683655

## Case

- **Full name:** Kuemmel v. Vradenburg
- **Court:** Court of Appeals of Texas
- **Decided:** May 23, 1951
- **Citations:** 239 S.W.2d 869
- **Precedential status:** Published
- **Opinion:** Concurrence by Norvell
- **Judges:** Pope, Murray, Norvell
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683655

## Opinion text

NORVELL, Justice.
I concur in the opinion of Mr. Justice POPE and agree with the reasons therein stated for affirming the judgment appealed from. To my mind, this is not a proper case for the submission of the rebuttal issue of “sole proximate cause.” Con-cededly the submission of this issue under certain factual circumstances is sanctioned by precedent in this State,, but the issue rs something of an anomaly and the enlargement of its use is not favored.
We say that if there be one “sole proximate cause” there cannot be several “proximate causes” and, therefore, if some action other than that of the defendant be a “sole proximate cause,” an act of the defendant cannot'' be a “proximate cause.” However, when, we consider the legal or technical definition of “proximate cause,” it becomes apparent that the foreseeability of the wrong person is inquired into, i. e., some one other than the defendant or person sought to be charged. If it be a rule of substantive law that a person is charged only with consequences he could reasonably foresee, it seems incongruous to inquire, into the foreseeability of a person other than the one sought to be held.
This is illustrated-by the facts in the case of Lombardi v. Wallad, 98 Conn. 510 , 120 A. 291 , wherein a defendant was charged with negligently kindling a rubbish fire on-a lot to the rear of two tenement houses without taking proper precautions to protect children therefrom, *880 with the result that a six-year-old girl was burned to'death. One of the defenses urged was that an older child had ignited a stick from the burning embers of the fire and touched it to the dress of-the little girl. It was asserted that this latter act brought about the fatal result and that the leaving of the fire unguarded was- therefore nbt a proximate‘cause of the child’s death. ■
’ In' considering the 'problem thus presented, an inquiry1 into the “foreseeability” of the boy with the stick would s'eéfti wholly imniaterial. -The'-pe'rtinent inquiry relátes to whether 'or riot the person who' 'left' the fire burning could have "reasonably 'foreseen the act of the boy with the stick or some similar act thereto. : ’ ' :
In the present case,' if we- assume that the 'child when injured was standing with his hands touching'the barrier, it is this circumstance of the child’s position which might be urged ás' breaking the cattsal connection' between the' act or omission of the defendant and the child’s injuries. ' It is difficult to see'-htiw the- “foreseeability” of-the parent bears upon the matter, one way or another. Certainly, the causal connection between the defendant’s act or omission; arid-the child’s injuries sustained while • he Is near the* barrier, if' broken • at all, would be broken as effectively by the action of .the..child in suddenly and -unexpectedly breaking-.from his parent’s grasp and .racing to the barrier as it would by his wandering unattended until he reached the protective fence. • '
The “sole proximate cause” issue is the one appellant contends should have been submitted, but it does not fit the • pleaded circumstances of ■ this case. A child- is an animate thing, capable of movement. When a person drives an automobile on the wrong side of the road, such action under proper circumstances may be said to be the “sole proximate cause” of'a-passenger’s-injuries with - some .support- in-precedent and without too much .violence.to the rules of. logic. But in this -case, the neglect of the parent must, have concurred with .the action of the child in order to-produce injury. Such neglect cannot bé a “sole proximate cause,” for the adjective “sole” is defined as, “being or acting without another; single; individual.” It is synonymous with “only; alone; ■ solitary.” Webster’s- New International Dictionary, 2d Ed.
• If an owner of an automobile negligently allows a known incompetent driver to use his automobile, such action may be a proximate cause of-another’s injury, Butler v. Spratling, Tex.Civ.App., 237 S.W.2d 793 , but it cannot be the “sole proximate cause”' of an injury;' for it; is necessary that it operate in: connection with some act or omissión -of the • driver to -bring about injury. The action of the automobile owne'r is a concurring cause, and cannot be a sole cause.’ Similarly; in this case -’the inattention of the parent must concur with some action or movement on the part of the child to produce injury. The parent did not place or hold the child against the barrier, and unless -¡the word “sole” be disregarded or redefined beyond recognition, theinattention of the parent could not be the “sole proximate cause” of the child’s injuries.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683655. Public record. Not legal advice.