Mrs. Patricia BIGGERS et al. (Betty Jo Epps Groce et vir), Petitioners, v. CONTINENTAL BUS SYSTEM, Inc. et al. (Mrs. Patricia Biggers et al.), Respondents, 298 S.W.2d 79

GRIFFIN, Justice. This is a suit by Mrs. Patricia Biggers and her children against the Continental Bus System, Inc. for damages resulting from a collision between a Ford car driven by Enoch A. Biggers, Jr., husband and father of petitioners, and a passenger bus belonging to Continental Bus System driven by Jack P. Lanham, an employee of the Bus Company. The collision took place on Highway 75 about eight miles north of Huntsville, Texas, about 8:52 a. m. on December 20, 1951. Enoch A. Biggers, Jr. was instantly killed in the collision.

The bus belonging to the Bus Company was proceeding generally in a northerly direction from Houston to Madisonville, Texas, upon Highway 75, and was on its own proper right side of the highway, well to the right of the center stripe of such highway. The collision between the vehicles took place a few hundred feet north of a bridge across Nelson Creek on said highway. The highway was 24 feet wide at the point of the collision and the bridge ■ was 28 feet wide. As the bus was being driven north along the highway, three automobiles were coming south down the highway.

The first was a Hudson car; approximately 100 or more feet behind the Hudson was the Ford car driven by Enoch A. Biggers, Jr., and a short distance behind the Ford was a Chevrolet automobile driven by Miss Betty Jo Epps accompanied by Mrs. Ernest De Jernett. It had been raining the night before and the paved portion of the highway was wet, but there is no evidence that the highway was slick. As the Hudson approached the bridge across the highway the driver of the Hudson slowed down to observe the creek to ascertain if it was too muddy for fishing. The shoulders on both sides of the highway were wet and muddy.

There is evidence that the Hudson had been driven along at 40 to 45 miles per hour and slowed to 10 to 15 miles per hour. The Ford car was being driven faster than the Hudson, so when the Hudson slowed down the driver of the Ford put on his brakes to avoid a collision with the Hudson. Mrs. Gross (then Miss Epps, who by the time of the trial had married Wm. Gross) saw the brake light of the Ford go on, and she put on her brakes to avoid colliding with the Ford. Her brakes “locked”, i. e., the brakes locked her wheels and she slid into the Ford striking it a little to the right of the center of the rear bumper.

This resulted in the Ford car being propelled diagonally eastward across the highway and in front of the bus and into the bus’ righthand side of the highway. The collision resulted between the bus and the Ford and all three occupants of the Ford were killed instantly. Upon a trial before a jury the jury answered 79 special issues favorable to the plaintiffs and judgment was rendered for plaintiffs against the Bus Company and Mrs. Gross and husband in the sum of $101,800.

The jury found the driver- of the bus guilty of negligence in failing to keep a proper lookout; in failing to apply his brakes; and in driving at an excessive rate of speed; in driving at a speed in excess of 55 m. p. h., and found each act of negligence to be a proximate cause of the collision. The jury found Mrs. Gross guilty of certain negligent acts which were also a proximate cause of the collision. Plaintiffs plead “discovered peril” as a ground of recovery and the trial court by appropriate issues submitted this ground of liability.

The jury, in answering these issues, found that the discovery by the bus driver of the perilous position of the deceased did not occur at such time that the driver could have avoided the collision. Therefore, any liability on the part of the Bus Company by virtue of the doctrine of discovered peril is not in the case as presented to us. All parties are agreed that no recovery can be had under that doctrine.

Upon appeal the Court of Civil Appeals reversed and rendered the judgment against the Bus Company upon the ground that, as a matter of law, the negligent acts of the bus driver (assuming that he was negligent) were not a proximate cause of the collision. The judgment of the trial court was otherwise affirmed. 277 S.W.2d 228. A more detailed statement of facts will be found in the Court of Civil Appeals’ decision. All parties agree that plaintiff must recover, if at all, under the findings of the jury as to primary negligence and proximate cause.

The plaintiffs, having recovered a judgment in the trial court on favorable jury findings, and this judgment having been rendered against plaintiffs on “no evidence”, it becomes the duty of this Court “to examine and consider all of the evidence bearing on the controlling issues, and having done so to decide whether there is evidence .of. probative value to support the answers made by the jury to the issues.” Hall v. Medical Bldg. of Houston, Texas, 1952, 151 Tex. 425, 251 S.W.2d 497, 498.

It is also well settled that there can be more than one proximate cause of a collision, and that all tho-se whose negligence is a proximate cause will be liable, in damages for the result's of the collision. Walsh v. Dallas Railway & Terminal Co., 140 Tex. 385, 167 S.W.2d 1018; Blakesley v. Kircher, Tex.Com.App., 41 S.W.2d 53, 55; Northern Texas Utilities Co. v. Floyd, Tex.Civ.App., 21 S.W.2d 6, wr. dism., w. o. j.; 30-B Tex.Jur. 223, Sec. 44.

For a negligent act or omission to be a proximate cause, the result of such act must be one which was a foreseeable result. “But it seems to us that as applied to the law of negligence, at least, a better ground for the rule [of proximate cause] is that a party should not be held responsible for the consequences of

an act which ought not reasonably to have been foreseen. In other words, it ought not to be deemed negligent to do or to fail to do

an act when it was not anticipated, and should not have been anticipated, that it would result in injury to anyone. To require this is to demand of human nature a degree of care incompatible with the prosecutions of the ordinary avocations of life. It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.” Texas & P. Ry. Co. v. Bigham, 1896, 90 Tex. 223, 38 S.W. 162, loc. cit., 2nd col., at page 163. Safeway Stores of Texas v.

Brigance, Tex.Civ.App.1938, 118 S.W.2d 812(5), dism., w. o. j.; Phoenix Refining Co. v. Tips, 1935, 125 Tex. 69, 81 S.W.2d 60(1); City of Dallas v. Maxwell, Tex.Com.App.1923, 248 S.W. 667(2, 3), 27 A.L.R. 927; 30-B Tex.Jur. 217, Sec. 40, and p. 222, Sec. 43.

It is not necessary that the defendant should or would reasonably anticipate the very consequences or the exact nature of the plaintiff’s injury or the precise manner of its infliction in order that such consequence be foreseeable. “ * * * It is sufficient that the defendant would reasonably have anticipated conse-. quences or an injury of the general nature of that which ensued. * * * ” Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 356; Sullivan v.

Flores, 134 Tex. 55, 132 S.W.2d 110, 111. “ * * * A prior or remote cause cannot be made the basis of an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition. Panhandle & S. F. Ry. Co. v. Sledge, Tex.Civ.App., 31 S.W.2d 146, 149; Sledge v. Panhandle & S. F. R. Co., Tex.Com.App., 45 S.W.2d 1112. * * *” Phoenix Refining Co. v.

Tips [125 Tex. 69, 81 S.W.2d 61], supra. “It is well settled that a person is not bound to anticipate negligent or unlawful conduct on the part of another. Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, wr. ref. * * * ” De Winne v.

Allen, 154 Tex. 316, 277 S.W.2d 95(2, 3), 98. “A motorist may assume that a vehicle approaching on its own right side of the road will remain on that side, and he is not expected to anticipate that such vehicle will leave its side of the road and turn into bis path.” 60 C.J.S., Motor Vehicles, § 317 a, pp. 733-734. With these principles in mind let us examine the evidence in this case, viewed most favorably to the plaintiffs, and in support of the judgmunt of the trial court.

The bus driver stated that the Ford turned in front of the bus at a distance of some 15 or 20 feet, but he stated that was “just an estimate in feet. I couldn’t be exact, * * *.” He stated that as soon as he saw the Ford coming across the road into his lane of traffic, he swerved his bus to the right. Mitchell saw the bus swerve only one time, and. that .immediately prior to the collision.

Mitchell was driving a gasoline transport truck only a short distance behind the bus and testified that he saw the bus, the oncoming cars, the Hudson slow down, the Ford “jump” out in front of the bus, but he did not see the actual collision as he glanced down at his tachometer right after the Ford came across in front of the bus. Mrs.

Gross, the driver of the Chevrolet, testified that she saw the brake lights on the rear of the Ford go on; that she realized the Ford was slowing down; that she stepped on her brakes and slid into the Ford; that she immediately closed her eyes, and turned off her ignition key and turned to her passenger, Mrs. De Jernett, and inquired of she were all right, and immediately heard the crash of the collision, and looked back over her left shoulder — her car having stopped — and saw the bus on top of the Ford, on the dirt shoulder of the highway and pushing the Ford in front of it.

She did not see the Ford cross the highway. The bus driver testified that he did not know how fast the Ford was going at the time it pulled out in his lane of traffic, but that the Ford could have been going 30 miles per hour or down to 25 miles per hour. In answer to the query by plaintiffs’ counsel as to whether the Ford could have been going 10 or 15 miles per hour, the driver answered, “I don’t know, it might have been 10 or 15 miles an hour, or 20 or 25 miles per hour, or 30 miles per hour.” The above was the slowest any witness testified the Ford was going. This shows to have been a pure guess.

However, we will consider this as evidence binding on the Bus Company. The record does not show how many feet per second a car traveling 10 miles per hour will cover. It shows that at 20 miles per hour a car will travel 29.3 feet per second. Therefore, we can easily calculate that at 10 miles per hour a car will travel 14.65 feet per second; at 15 miles per hour it will travel 22 feet per second. The plaintiff is entitled to have the benefit of the slowest speed that the record will support in order to give the driver of the bus the longest time for reaction.

As to the distance between the bus and the Ford at the time the Ford crossed the middle line dividing the highway into two lanes, the plaintiff is entitled to have the farthest distance the record will support. We think there can be no doubt that if the Ford crossed into the traffic lane in such a short time the bus driver could not put on his brakes, or slow his speed before the bus was on the Ford car, then the failure on the part of the bus driver to keep a proper lookout, to slow down, or apply the brakes could not possibly be a proximate cause of the collision.

Respondents’ witness, Mitchell, testified that the Ford was 150 feet to 175 feet in front of the bus when it came over in front of the bus. The faster the bus was traveling, the shorter time it would take to' close the distance between the bus and the Ford. Mitchell testified he was going 40 to 45 miles per hour at the time, and the bus was making 20 to 25 miles per hour more than he. The jury found that the bus was traveling in excess of 55 mph.; therefore, 56 mph. is the slowest speed which we may assume the bus was traveling. At 56 miles per hour the record shows the bus would cover 82.13 feet per second.

The plaintiff is entitled to have us accept 10 miles per hour, or 14.65 feet per second, as the speed of the Ford, and 56 miles per hour, or 82.13 feet per second as the speed of the bus at the time the Ford turned into the traffic lane occupied by the bus. This means both vehicles were coming together at a rate of 96.78 feet per second — the total of both speeds. Taking the greatest distance the record shows those vehicles were separated at this time as 175 feet, the collision occurred between the two vehicles in less than two seconds, or to be exact — 1.8 seconds.

It also demonstrates that speed at which the driver was driving the bus could not be a proximate cause of the collision, except as said by the Court of Civil Appeals [277 S.W.2d 233] “* * * only in some such sense as that if its bus had not been on the highway at all the collision would not have occurred.” See also East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 616; Davis v. Younger Bros., Tex.Civ.App., 260 S.W.2d 637, wr. ref., n. r. e., and cases therein cited.

The speed of the bus did nothing more than furnish the occasion for the collision, but could not, under the facts in this case as we have detailed above, be a proximate cause thereof. Petitioners contend that instead of taking the testimony of witnesses as to the distance between the two vehicles immediately preceding the time of the collision we are required to take into consideration the time element, if we are to view the facts most favorable to upholding plaintiffs’ jury verdict.

They cite the testimony of Lanham, the driver of the bus, that the Ford came down the highway in the bus’ lane of traffic for a distance of 40-50 feet south, and 10-15 feet east after the Ford was knocked out of its own proper lane of traffic. A reading of the whole of Lanham’s testimony shows that this distance was only a guess or estimate. But taking his testimony on this point we know the Ford did not go straight south, and then straight east to the point of collision. Of necessity, it must have proceeded at an angle.

Figuring the distance traveled by the Ford as a right angle triangle whose base is 15 feet and its leg 50 feet, we find the hypotenuse would be 52.3 feet. This would represent the distance actually traveled by the Ford to the point of impact. How long would it take the Ford to traverse this 52.3 feet traveling at 10 mph., or 14.6 feet per second? A calculation will show the elapsed time to be 3.58 seconds, or practically 3½ seconds. The bus had to travel the same length of time from the entry of the Ford into the bus’ lane of traffic to the point of collision as that traveled by the Ford.

For the collision to occur it was necessary that both vehicles reach the point of impact at the same time. If the bus were traveling for a longer period of time, it would have cleared the point of collision. It makes no difference how far the bus traveled, it, of necessity, also had to travel for a period of 3.58 seconds. An examination of the photographs introduced in evidence shows that the right front of the Ford struck the front end of the bus at approximately the center of the front of the bus.

The impact is shown by a very distinct “v” shaped curving-in of the front of the bus with the apex of the “v” at the center of the width of the bus. The left front wheel of the bus ran into and upon the right side of the Ford about the center of the right front door. The left front wheel of the bus shows to be inside the Ford and immediately in front of, but touching, the front of the front seat. From the photographs it appears that the left front wheel of the bus hit at about one-third the distance between the front and rear of the Ford.

To have cleared the point of impact the whole of the Ford would have had to continue until the rear of the Ford was past the total width of the bus. The photographs show that at the time of the impact the Ford was not traveling straight across the path of the bus, but it was traveling at an angle, or diagonally, to the path of the bus. Such being true, it would have required additional time for the Ford to have cleared the bus and the collision not to have resulted.

To have cleared the point of impact — had the Ford been going squarely across the path of the bus — it would have been necessary not only for the two-thirds length of the Ford to have cleared, but also the Ford must have traveled the additional distance of one-half the width of the bus. The Ford traveling diagonally would have required an appreciably longer space of time, as it would have been necessary for it to also clear the length of the bus. This time would have been at least two seconds.

This calculation gives the plaintiff the benefit of the greatest possible distance and the shortest possible time in which the Ford could have cleared the bus. There was no evidence in the record that will support an assumption that the bus was more than 3.58 seconds in reaching the point of impact. Under all these facts and circumstances, we hold there was not sufficient time involved to have permitted the bus driver to have done anything to have avoided the collision. We also hold that the failure of the bus driver to reduce his speed, or put on his brakes, was not a proximate cause of the collision.

For a negligent act or omission to be the proximate cause of an injury,' the consequence of the act or omision must be a consequence which is probable according to ordinary and usual experience. Dallas Railway & Terminal Co. v. Hendrix, Tex.Civ.App.1953, 261 S.W.2d 610, no writ history. In the recent case of Wiley v. Mercer, Tex.Civ.App. 1955, 282 S.W.2d 87, 88, no writ history, {a plea of privilege case), the plaintiff was riding in an automobile on her own proper side of the highway when her car was hit from the rear by another car.

As a result of this collision the car was knocked out of control across the highway into the path of defendant’s truck and the collision for which suit was brought resulted. Plaintiff pleaded the above facts more in detail and also pleaded that defendant was driving at an illegal and negligent rate of speed. It was further alleged that had defendant been driving at a legal and not negligent rate of speed he could have stopped the truck or otherwise avoided the collision. The facts as made by the allegations of the petitioner are similar facts to those in the case at bar.

The trial court held, as a matter of law, that the allegations above referred to failed to show that the acts of the defendant, which included the speed at which he was driving, were a proximate cause of plaintiff’s injuries. In affirming this holding by the trial court the Court of Civil Appeals said: “We have carefully considered the pleadings of the plaintiff and have concluded that the trial court placed the proper construction thereon. The pleadings show that Mrs.

Wiley, one of the plaintiffs, was operating her automobile in a column of cars in a westerly direction at a rate of speed not exceeding thirty-five miles per hour, that her car was struck in the rear by a car driven by one Herman Moen and without warning was knocked into the path of the oncoming truck driven by the agent of the defendants. It is well settled that the foreseeableness is a necessary element of proximate cause.

We hold, as a matter of law, that the driver of the truck was not chargeable with foreseeing that a third party such as Herman Moen would negligently strike the car of the plaintiffs from the rear and cause it to, without warning, be driven upon the side of the highway immediately in front of the truck. Dallas Railway & Terminal Co. v. Hendrix, Tex.Civ.App., 261 S.W.2d 610, [no writ history]; Reeves v. Tittle, Tex.Civ.App., 129 S.W.2d 364 [wr. ref.]; Gann v.

Murray, 151 Tex. 130, 246 S.W.2d 616.” In our case, we hold that the speed of the bus, as a matter of law, was not a proximate cause of the collision between the Ford and the bus. It is not a usual and customary happening that one car in a line of traffic will be unable to stop in time to prevent a collision with the car next ahead in the traffic. Mrs. Gross, the driver of the Chevrolet, did not foresee that her brakes would lock causing her to skid into the rear of the Ford.

Neither is it usual and customary for one car in a line of traffic to collide with and propel the car hit into the right-hand side of the highway being used by approaching traffic. Therefore, such happening cannot he foreseeable so as to be included in the definition of “proximate cause.” On the question of the failure of the bus driver to keep a proper lookout as being a proximate cause of the collision, we agree that there is no evidence in the record to support such finding.

Until the Ford started across the center line into the traffic lane occupied by the bus, the record shows nothing at all to indicate that the Ford car would do otherwise than to* remain in its own proper lane of traffic. In fact, Mitchell testified that previous to this time, the Ford had pulled out of its lane and over to the left in an apparent attempt to pass the Hudson, and the driver, apparently seeing he did not have room to pass safely, immediately dropped back into his proper southbound traffic lane.

Had the bus driver seen this, which he did not, it would only have indicated to him that the Ford would not pull out in front of the bus. There is not one word of testimony from any witness, fact or circumstance in this record which can be construed as indicating that prior to the time the Ford pulled out in front of him, the driver of the bus should have done one thing to avoid this collision.

We agree with the Court of Civil Appeals that under the circumstances of this case the bus driver was under no duty to anticipate the Ford would pull out in front of him until it actually did pull out of its line of traffic. The bus driver did not see the collision between the Chevrolet and the Ford. Neither did Mitchell, and Mitchell testified he could not see the collision due to the closeness of the cars and the fact that they were “bunched together” although Mitchell testified he was watching both the bus and the three approaching cars. We think the case of Volkmer v.

Curlee, Tex.Civ.App.1953, 261 S.W.2d 870, 873, wr. ref., is controlling on the question of failure to keep a proper lookout. In that case Volkmer was driving down a street which intersected the street on which Curlee was driving. The street on which Volkmer was traveling had a “stop” sign at the entrance to the street on which Curlee was traveling. The street on which Curlee was traveling had no “stop” sign at its intersection.

Volkmer testified he intended to stop at this sign, but that when he put on. his brakes they failed to function, and he ran on out into the street and collided with Curlee’s car, striking it broadside with the front of his (Volkmer’

s) car. Upon the trial of the cause the jury convicted Volk-mer of negligent acts, a proximate cause of the collision, but also found Curlee guilty of contributory negligence in failing to keep a proper lookout which was found to be a proximate cause of the collision. Upon proper motion the trial court disregarded the jury’s finding on contributory negligence and rendered judgment for Curlee against Volkmer. Upon appeal, Volkmer contended that there was evidence to support the jury’s finding of contributory negligence and proximate cause.

The Court of Civil Appeals affirmed the holding, among other things, that the element of “foresee-ableness” was absent, so there could be no proximate cause. The Court said: “Appellant testified that as he approached the intersection he observed the stop sign. He applied his brakes expecting to stop and was surprised when he failed to stop, and even after the event could not explain his failure to stop. It must be inferred that as appellant approached the intersection his speed was such and his control of his vehicle was such that he anticipated bringing his vehicle to a stop.

And for the jury to hold that the failure of appellee to keep a proper lookout was a proximate cause of this collision, it would be necessary for the jury to find that appellee should have foreseen the occurrence of an event, the happening of which appellant himself cannot explain and the opposite of which appellant anticipated. To so find would be contrary to the experience of mankind.” So, in our case, Mrs.

Gross testified that she saw the Ford stopping or slowing down; she saw the brake lights on the Ford go on; that she stepped on her brakes fully expecting them to hold and prevent her colliding with the Ford; that for some unexplained reason they did not hold, and she collided with the Ford. The evidence shows beyond controversy that this collision pushed the Ford across into the lane in front of the bus. We fail to see how the bus driver can be held to have been able to foresee this collision, or some similar happening which would propel the Ford into his lane.

In the case at bar no serious contention is made, nor could it be made, that anything done by the bus driver contributed to the loss of control of the Ford car when it came in front of the bus. We think what was said by the Court in the case of Surkey v. Smith, Tex.Civ.App.1940, 136 S.W.2d 893, 895, wr. ref., is applicable to our case: “ * * * We think the evidence corroborates rather than contradicts the testimony of Smith that he did not see Surkey until he struck him. He did not sound his horn, he did not apply his brakes, he made no effort to swerve his car in an effort to avoid striking Surkey.

It would be contrary to human nature not to make some effort to prevent striking a person after discovering his periloiis position. Furthermore, it is shown that this accident happened very suddenly.

If Smith was traveling as slow as twenty miles per hour he was traveling thirty feet per second, and it would thus appear that from the time Smith passed the Sharp car until he struck Surkey was less than two seconds, * * * ”. (Emphasis added.) We have carefully studied the record in this case and from all the facts and circumstances we find the Court of Civil Appeals to be correct in holding that the element of foreseeability is wholly lacking, and, therefore, no liability can be imposed upon the defendant Bus Company. Mrs.

Gross filed an application for writ of error in which she asked that the cause be reversed and remanded as to her. We find no errors pointed out in the Court of Civil Appeals or in this Court which would justify a reversal of this cause. The judgment of the Court of Civil Appeals is in all things affirmed. CALVERT, SMITH and WALKER, JJ., dissenting. HICKMAN, C. J., not'sitting.