The opinion
On Motion for Rehearing.
[17-19] We have concluded we were in error in holding paragraph 11 of the court’s charge sufficiently submitted the issue of assumed risk as to the grease and water, and in holding there was no reversible error in refusing requested charge 18, of which complaint is made under the second assignment of error. In charge 11 the jury were told, if “plaintiff knew there was grease and water on the apron in the cab of said engine, or by the exercise of ordinary care could have known the same while in the discharge of his duties, in time, by the exercise of ordinary care on his part, to have a-voided injury therefrom,” in such event the jury were instructed to find for the defendants. The limitation placed on the charge italicized confused, we think, assumed risk and contributory negligence. If he knew, or must have known, of the negligence and the danger, and continued in the service, this would defeat liability under the Federal Employers’ Liability Act. It is probable that the trial court had in mind, in drafting this charge, article 6645, subdivision 2, R. O. S. Under the federal act there is no such limitation, but the common-law rule prevails. This charge, however, under our statutes, would have been defective. A very similar charge to this was condemned and held reversible error by our Supreme Court. Railway Co. v. Hodnett, 106 Tex. 190 , 163 S. W. 13 ; Railway Co. v. Miller, 201 S. W. 1049 (7, 8); Railway Co. v. Winkler, 179 S. W. 691 (4, 7). In the Hodnett -Case Judge Phillips said:
“That part of the charge which instructed the jury that the plaintiff would not be held to have assumed the risk if they believed that a person of ordinary care in his situation would have continued in the service with knowledge *648 of the defect, was erroneous, since the test provided by article 6645 for determining whether in such ease the risk is assumed, is not whether a person of ordinary care would have continued in the service with knowledge, simply, of the defect, but whether such a person would have continued in the .service with knowledge both of the defect and the danger.”
It will be perceived the question of knowledge of. the danger was not submitted. While the Hodnett Case is one construing our statute, and which in effect holds the statute does not abrogate assumed risk in this' state, it is nevertheless authority on the necessity of giving a correct charge on the law. We do not believe that an employee is relieved of assumed risk by ordinary care to “avoid injury” from the. defect. The danger which charges knowledge must be such that “an ordinarily prudent person, under the circumstances, would have appreciated it.” Railway Co. v. Hall, 232 U. S. 94 , 34 Sup. Ct. 229, 58 L. Ed. 521 . Our state courts have said:
“The servant owes no duty of inspection. He assumes the risk of a danger of which he has actual knowledge, and of such hazard as he would have learned by the exercise of that ordinary circumspection which a prudent man would have used in the particular employment.”
He could not sljut his. eyes to dangers that are obvious to an ordinarily prudent man. Railway Co. v. Hynson, 101 Tex. at page 546, 109 S. W. 929 ; Bonnett v. Railway Co., 89 Tex. 76 , 33 S. W. 334 . The charge, it appears to us, assumed if the appellee knew, as an ordinarily prudent man must have known, of the hazard he would not be guilty of assumed risk if he exercised ordinary care, to “avoid injury therefrom.” When he knew of the hazard he takes the risk, however careful he may be to avoid injury. Under the facts of this case the jury could have found very properly that appellee knew of the grease and water, but that he did not know the danger in remaining on the engine, and in attempting to continue in the discharge of his duties under the peculiar circumstances then surrounding him. It will be perceived by the charge the court only authorized the inquiry as to whether he knew of the water and grease, and did not require them to ascertain if he knew, or should have known, the danger. Obviously this was the important fact to be found. The effect of the charge is as if the court had said, “If you find he knew of the grease and water, you need find only that he used ordinary care in time to avoid injury therefrom.” They, und@r this charge, could find he knew of both the defect and the danger, but that they could not find for appellants if appellee used care to avoid injury. Railway Co. v. Bryant, 8 Tex. Civ. App. 134 , 27 S. W. 825 : Railway Co. v. Bingle, 9 Tex. Civ. App. 322 , 29 S. W. 674 .
[20] For the reasons above stated we were in error in overruling the fifth assignment of error assailing the ninth paragraph of the court’s charge. We were under the impression that the eleventh paragraph, which sought to apply the law to the facts, simply placed the burden on appellee of ordinary care to discover the defect, which was more onerous to the appellee than the law required. We are now convinced by these charges the jury were authorized to acquit appellee of assumed risk, even if he knew of the defect and hazard, if he used ordinary care to avoid injury therefrom. There is no assignment assailing charge 11, but as a substantial correct charge was requested, and an assignment asserting error in the failure to give the requested charge is presented, perhaps, under our practice, it was sufficient to have called the trial court’s attention to the defect, and will authorize a reversal upon that point.
[21] The first assignment simply asserts there was error in submitting whether there was grease and water in the cab because the undisputed evidence established that appellee assumed the risk, not that the evidence was not sufficient to show its existence, or that it was not negligence on the part of appellant to permit it so to remain. We think the evidence presented an issue of fact for the jury, and not one of law under the circumstances of this case. Even though he discovered water and grease as he entered, which the facts do not conclusively show, but rather he did not discover until he entered the cab, and the facts also indicate he was not then aware of the defect in the lever to the ash pan or the necessity of going beneath the engine to adjust it. Unless this grease find water, and the consequent danger, were so obvious that an ordinarily careful person, in his situation, would have observed the one and appreciated the other, then there would be no assumed risk. Without discussing further the facts, we think, under the circumstances, it was one for the jury. Railway Co. v. De Atley, 241 U. S. 310 , 36 Sup. Ct. 564, 60 L. Ed. 1016 .
[22] The third assignment is based on the objection to submitting the issue of lighting the engine and premises because it is asserted the appellee assumed the risk of no lights. Again, we think, as to the danger therefrom, the question was one for the jury under all the facts.
[23] With reference to the fourth assignment, it is asserted .that furnishing a torch which appellee permitted to be blown out, and which he did not relight, rendered it error to submit the issue of negligence as to lighting the premises. This, we think, was an issue for the jury.
[24-26] The sixth assignment asserts error in submitting a failure to light the premises as a proximate cause, and the eighth assignment, that moving the engine on the turn *649 table over the pit was not tbe proximate cause of the injury, and the tenth assignment that the evidence is not sufficient to show that appellant stepped in grease and water, which caused the fall. Appellee fell, and the jury found that it was not an accident under appellant’s specially requested instruction. We are inclined to the opinion that the evidence was sufficient to submit the question to the jury for their determination. If we shall concede that appellants’ interpretation of paragraph 10 is correct, yet we are not prepared to say, if the jury _found one of the alleged acts of negligence was the proximate cause of the injury, that such finding would be without any evidence to support the verdict; or, in other words, that such act should not be submitted because it could not, under the rules of legal logic, be the proximate cause. We believe a jury may have found any one of the acts negligence, and acting in conjunction with other acts, whether such other acts were negligence or not, they could have found the injury proximately resulted therefrom if the injury would not have occurred but for the particular negligent acts so found. We think the court would not have been authorized in withdrawing any of the acts from the jury, and certainly if they were all negligent acts, and concurring with each other, and caused the injury, the court should not have withdrawn all from the consideration of the jury.
Assignment 13, assailing the fourth paragraph of the charge, presenting appellee’s cause of action, as based on the Federal Safety Appliance Act, is assailed by appellants as being error. It is asserted by the assignment that the defective ash pan was not, and could not be, the proximate cause. We may say appellants, by their argument and citation of numerous authorities, have not changed our view as expressed in the original opinion,
“In cases in which there is more than one cause or act connected with or concerned in producing the injury, the books are full of discussions determining which one of the causes or acts was the proximate cause. As a result of the infinite variety of cases presenting this question, it is easy to find authority that will apparently support each side in almost any controversy in which a doubtful question arises. To attempt to reconcile these cases would be the height of folly. In truth, when carefully studied, there is really little conflict between them. The apparent conflict grows out of the difference in facts, to which must be applied the principle that controls.” City of Louisville v. Hart, 143 Ky. 179 , 136 S. W. 215 , 35 L. R. A. (N. S.) 207.
“The negligent act or omission must be the cause which produces the injury, but it need not bo the sole cause, nor the last or nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which, in combination with it, causes the injury, or if it sets in motion a chain of circumstances, and operates on them in a continuous sequence, unbroken by any new or independent cause. The question is not determined by the existence or nonexistence of intervening events, but by their character, and the natural connection between the original act or omission and the injurious consequences. * * * It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury; but, when it occurs, it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent, and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. When the act of a thix-d person intervenes, which is not a consequence of the first wrongful act s>r omission, and which could not have been foreseen by the exercise of i’easonable diligence, and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as the natural and probable consequence of Ms own negligence, and, if so, the connection is not broken; but if the act of the third person, wMeh is the immediate cause of the injury, is such as, in the exercise of reasonable diligence, would not be anticipated, and the third person is not under the control of the one guilty of the first act or omission, the connection is broken, and the first act or omission is not the proximate cause of the injury.” Seith v. Commonwealth Electric Co.. 241 Ill. 252 , 89 N. E. 425 , 24 L. R. A. (N. S.) 978, 132 Am. St. Rep. 204 .
We quote from the above case the miles for determining the proximate cause, and not because the facts in that case are similar to the facts of this ease. In this case there was no intervening negligent act of a third party. The defect in the ash pan did not simply furnish the condition, but the grease and water more nearly answered to that position. The intervening object in this ease was set in motion by the original defect, and acting in conjunction with the grease and water produced the injury. Unless there was an intervening agency between the defect in the ash pan lever and! the injury, we apprehend there would be no' contention that it was not the proximate cause of the injury. The mere fact that the injury would not have happened but for the slip does not necessarily make the grease and water the sole cause of the injury. If the injury would not have occurred but for the defective lever and the slip, then both *650 are the proximate cause. If the testimony of appellee is true, he, but for the defect, would not have tried to leave the cab when, he did, and but for that he would not have fallen at that time. The mere fact that he slipped on the road to adjust the ash pan did not break the causal connection, but was only a concurring cause, and was not an independent, intervening cause. The grease and water simply lay in wait, to be brought into active operation by the cause which induced appellee to leave the cab. Certainly the cause which called into action the grease and water gave its efficiency at the time for harm.
“Intervening agencies sometimes interrupt the current of responsible connection between negligent acts and injuries, but, as a rule, these agencies, in order to accomplish such result, must entirely supersede the original culpable act, and be in themselves responsible for the injury, and must be of such a character they could not have been foreseen or anticipated by the wrongdoer. If it required both agencies to produce the result, or if both contributed thereto as concurrent forces, the presence and assistance of one will not exculpate the other, because it would still be the efficient cause of the injury.” Shippers Co. v. Davidson, 35 Tex. Civ. App. 558 , 80 S. W. 1032 ; Railway Co. v. Cardwell, 187 S. W. 1073 ; Pullman Co. v. McGowan, 210 S. W. 847 ; City of Louisville v. Hart, 146 Ky. 171 , 136 S. W. 212 , 35 L. R. A. (N. S.) 207.
[27] The last above quotation is from the Court of Civil Appeals, but it cites very high authority. It presents, we think, the rule of concurrent acts clearly and understandably, without any attempt at subtle refinements. In this case there was no independent employer committing a different act at a different time and place. The injury i$ the result of the negligence of the same superior. Be the acts one or more, these several acts concurred at the same place and at the same time. We do hot think the line of cleavage between the two acts is so plainly discernible as to make them independent and separate acts, and the latter intervening, which alone caused the injury. They were in action at the same place at the same time, through the fault of the same superior, by which the injury resulted. The injury might have occurred without the grease and water, but the grease and water would not have been brought into operation at the time and place it was but for the defect which impelled appellee to pass over it.
The other assignments we think properly 'disposed of in the original opinion. Some of the matters perhaps will not occur on another trial. The motion for rehearing will Be granted, and the judgment of affirmance ordered set aside, and the judgment of the trial court reversed, and the cause .remanded .for another trial.