Volkmer v. Curlee

On Rehearing In a most forceful motion for rehearing, appellant contends that our holding is in conflict with the decision of the Supreme Court in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, the decisions of this Court in Edson v. Perry-Foley Funeral Home, 132 S.W.2d 282, and Tidy Didy Wash v. Barnett, Tex.Civ.App., 246 S.W.2d 303, and with the decision of the Texarkana Court of Civil Appeals in Todd v. LaGrone, 234 S.W.2d 99. Despite the forceful and analytical argument made by appellant in his motion, we do not agree that our opinion is in conflict with the cited cases. We did not hold, as a matter of law, that appellee was not required to foresee or anticipate the possibility that appellant's vehicle might not stop as required by the stop sign. On the contrary, it was our undertaking to distinguish this case from the cited cases, by pointing out that the appellant, charged though he was with the burden of proving both negligence and causation on this defensive issue of proper lookout, not only failed to offer any proof from which a finding of proximate cause could be made, but by his own testimony which we have referred to, and by which he is bound under any view of the evidence, expressly negatived the element of foreseeability essential to a finding of proximate cause.