The opinion
Upon Motion for Rehearing of Appellee Wesley Bradshaw.
In contesting our holding that the evidence supports the finding that the negligent speed of the train was a contributing proximate cause of the collision, the motion states that “the vital point in determining whether the negligent acts of the -driver of the bus were such as to constitute the sole proximate cause of the collision is the detail as to where the bus was when the driver was given warning of the approach of the train.” It contends in this regard that Wolf’s calculation of this-distance as from 75 to 100 feet must be qualified by his further testimony that this was an approximation and that the real distance-depended upon where the train could first be seen by one traveling south on the highway, whether that distance be 100, 125,' or 150 feet. It further contends that the physical facts, as shown by a map and photographs in evidence, demonstrate that the train could have been seen at a point on the highway 200 feet from the crossing.
While it is true that Wolf’s statement of distance was an estimate, it is also true that this estimate was based upon his judgment of the distance both at the time of the occurrence and from observations made by him later in the day when he returned to the scene for the purpose of viewing the physical environs, including this particular point of inquiry. The qualification referred to was elicited on cross-examination, and' was nothing more than an admission that there might be an error of judgment on his part Tlie accuracy of the map was not conclusively established; and Wolf, upon examining it, stated in substance that it did not -appear to represent the extent of the curve of the main line of the railroad to the south-leading to the trestle. The photographs were taken at a later time when the obstructions to the view by the box car and passenger coach were not shown to be the same as at the time of the collision. Wolf testified that the relative positions of the box car and coach in the map and photographs were not the same as at the time of the collision, in that on the day of the collision the two cars presented a continuous obstruction to the view of one traveling on the highway; whereas, the photographs and map showed a gap between them. A slight change in the degree of curve in the track and in the position of these cars might make a material difference in the distance from the crossing, from which one on the highway might see a train approaching from the south on the main line. Wolf’s evidence was clearly sufficient to support his estimate of 75 to 100 feet and the physical facts did not necessarily negative this evidence. However, we do not concur with the statement in the motion that this detail is vital to the question of whether the found negligence of the -bus driver was the sole proximate cause of the collision.
The motion further contends that the negligence of the railroad could not be *1105 a contributing proximate cause, for tbe reason that the train operatives could not be held reasonably to have foreseen that the'bus driver would pursue the course of action he did in negligently attempting to cross in front of the train. The negligence in the speed of the train consisted in the fact that the train was approaching a heavily traveled public crossing within the city limits of Round Rock. This situation demanded of the train operatives such a reduction in speed as would comport with the safety of those traveling upon the highway, having in view that the train operatives were in charge of an instrumentality which could not be readily ■brought to a stop when traveling at a high rate of speed; and tlipy were charged in the regulation of the speed at that point with such care as an ordinarily prudent person would exercise, having in view the surrounding circumstances. It would not be unreasonable, we think, to conclude as a matter of fact that such duty of ordinary care would require that the train' be kept within reasonable control of the operatives within their line of vision. If such test be a proper one, then it follows that a failure to exercise the care which it imposed would impute to the train operatives a foresight which would embrace the contingency of a collision with some one traveling upon the highway. It was not essential that such foresight should éxtend to any particular combination of circumstances. The doctrine of foreseeableness is not thus limited in its application.
This view of the negligence in speed stamps it as an active continuing proximate cause and not merely a passive one, when such negligence combined with the negligence of one upon the highway in producing the collision. We think this conclusion is sustained by the recent holding of the Commission of Appeals in Valee v. Joiner, cited in our original opinion, which holding was expressly approved by the Supreme Court.
The other points urged in the motion have, we think, been fully considered in our original opinion. The motion is overruled.
Overruled.