Barker v. Bateman Foundry & Machine Co. , 1979 Tex. App. LEXIS 3307 ( 1979 )

RALEIGH BROWN, Justice,

dissenting.

I dissent because there is no evidence to support a finding of proximate cause in response to Special Issue No. 6. Without such evidence, Special Issue No. 5 becomes immaterial and the jury’s failure to answer same is of no consequence.

The court in Texas & Pacific Railway Company v. McCleery, 418 S.W.2d 494 (Tex.1967) said:

The well established law of this State is that proximate cause includes two essential elements: (1) foreseeability, and (2) cause in fact or causal relation. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). . . .

In Missouri Pacific Railroad Company v. American Statesman, 552 S.W.2d 99 (Tex.1977), the court said:

Cause in fact as an element of proximate cause means that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. . . .

In the instant case, an on or off switch would not have prevented the accident without the machine being turned off. The boy was injured because Barksdale failed to timely turn the machine off. To supply evidence of the element of cause in fact necessary to support the submission of the proximate cause Issue No. 6, the jury must indulge in drawing an inference on an inference.

The court in Schlumberger Well Surveying Corporation v. Nortex Oil and Gas Corporation, 435 S.W.2d 854 (Tex.1968) said:

[A]s has often been said by this court, a vital fact may not be established by piling inference upon inference, as would be required in this case. Rounsaville v. Bullard, 154 Tex. 260, 276 S.W. 791 (1955); Lobley v. Gilbert, 149 Tex. 493, 236 S.W.2d 121 (1951). To permit proof in this fashion, would violate the rule of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), which requires proof of any vital fact by evidence amounting to something more than a mere scintilla.

In the case at bar, the jury must infer that Barksdale would have turned the machine off had a switch been available. Additionally, the jury must infer that if the switch was conveniently located, Barksdale would have turned the machine off before the lapse of the “three seconds” from the time he removed his ice and “the child screamed.”

I do not agree with the majority.