
    GULF PIPE LINE CO. v. BAILEY.
    No. 3974.
    Court of Civil Appeals of Texas. Texarkana.
    June 18, 1931.
    Rehearing Denied July 4, 1931.
    
      .“.Joe S. Brown, of Houston, McKinney & Berry, of Cooper, and Emmet Thornton, of Sulphur Springs, for appellant.
    J. K. Brim and Ramey & Davidson, all of Sulphur Springs, for appellee.
   LEVY, J.

(after stating the cáse as above).

The appellant presents the points in view, in effect, that there is no evidence going to show negligence in the manner and way (1) in which the excavation was made for the pipe line, or (2) in refilling or closing the excavation after the pipe was laid. In December, 1928, floodwaters, such as were usual, broke through a portion of the levee and flooded the adjoining pasture, inflicting loss and injury to the cattle of appellee. The break in the levee embankment was, as proven, about “SO or 40 feet” wide, and the base or earth underneath the levee was undermined, “about 12 feet below the surface.” No other portion of the levee broke, and no other portion of the earth underneath was undermined, except this particular part where the pipe line was run. And it was affirmatively shown that a break in this particular section of the levee had not previously occurred during the seven years from the time of the construction of the levee in 1921, until the present time of December, 1928. The levee embankment and the base, or earth underneath it, were previous to that time in a reasonably safe and perfect condition, and held the flood-waters and prevented any overflowing of the adjacent land. As going to show that the hole in the levee causing the injury was through the fault alone of the appellant, there was offered the circumstances that in July, previous, the appellant made excavations in the earth under the levee embankment to lay an additional pipe line. An excavation was made to the depth of about six feet and the pipe laid therein. Although not shown by affirmative evidence, yet it would be presumed that after laying the pipe the excavations were refilled with dirt and the dirt tamped. No other probable cause for the break in the levee embankment and the earth underneath the embankment was made to appear, except the running of the pipe line in the earth. As is apparent, there was caused a weakening of the embankment of the levee and the earth underneath by the excavation for the laying of the additional pipe line. It is inferable that the weakening of the embankment. and earth underneath was in consequence of the manner and way in which the excavation was made, or in refilling the excavation,, for the physical circumstances relating to the break point forceably to that inference. Quoting from the witness who described the break: “The hole in the ground was 10 or 12 feet deep, I take it. The break in the levee was right over all three of the pipe lines. The whole works had been washed out from the lines. The hole that washed out, where the pipe line crossed, and where the break happened, in the levee showed to be about 12 feet below tbe natural surface', and tbe pipes of tbe pipe line were just banging.”

Tbe break in tbe embankment may not be regarded as merely a breaking away of tbe embankment and eartb, without any evidence pointing to any efficient cause for tbe break. It is believed tbe jury in all tbe circumstances were warranted in concluding, in point of fact, that tbe bole in tbe embankment would not have happened in tbe usual and ordinary course if tbe work of excavation and refilling bad been done with reasonable care and in a protective manner. Circumstances attending the injury may, as a general rule, afford proof of negligence. 6 Thompson on Neg. (1905) § 7863; 20 R. C. L. § 163, p. 197; 45 C. J. p. 1267. In' tbe facts, it was tbe duty of tbe appellant in running tbe pipe line to have taken precaution to avoid any weakening in tbe levee, being charged with notice, as it was, that at this section of tbe levee great volumes of water were thrown against tbe embankment in tbe usual freshet and flood times in tbe winter months because of tbe necessary levying of tbe river in an “elbow shape.” As shown by tbe proof, there was a choice of modes of running the pipe line that would have avoided a break in tbe levee in flood times.

The appellant excepted to tbe court’s definition of proximate cause and requested, and tbe court refused to give, a special instruction covering tbe correction pointed out and claimed to be error. The point made is that tbe definition in tbe court’s charge omitted the element that tbe result must have been one which might reasonably have been foreseen. As defined in the part of tbe court’s instruction complained of, “proximate cause is that cause, which in a natural and continuous sequence, unbroken by any new independent cause, produces an event, and but for which tbe same would not have happened.” Tbe definition given by tbe court was not an incorrect one, and neither was it inapplicable to tbe case. The instruction means, as tbe jury could have readily understood, that tbe act or omission which immediately causes tbe harmful result and without which such harmful result would not have happened, shall be deemed tbe proximate cause of an injury. There is no pretense in .the evidence of any other cause for injury except tbe flood. Tbe break in tbe levee let tbe floodwaters over and upon the adjoining pasture land. Impounded waters, as the appellant must be held to have known would come within tbe levee, embody perils when tbe embankment is weakened by excavation. Appellant could, as conclusively appears, have reasonably foreseen the harmful results in evidence.

Tbe appellant excepted to tbe refusal of tbe court to give tbe requested issue, “Could the plaintiff, bis agents or employees, have lessened tbe damages, if any, by the use of ordinary care and tbe expenditure of a reasonable amount of labor and time, or both?” Tbe appellant points out that there was evidence going to show after tbe land became overflowed tbe appellee could have gone in tbe pasture and have driven a part of tbe cattle to high ground nearby, saving a portion of tbe cattle from being damaged. Tbe evidence of appellee goes to show that tbe pasture was a large one of several miles length, and that when the break occurred tbe high water and the muddy condition of tbe ground prevented getting to the cattle, and made it difficult to drive them out or to the foothills. The court submitted to tbe jury tbe following issue: “Do you find from tbe evidence that the plaintiff was guilty of contributory negligence in failing to remove tbe cattle from the overflow area?”

This latter issue, as submitted by tbe court, did not limit or undertake to limit tbe finding of contributory negligence to doing- something before the break and overflow, or after it bad been seen that there was a probability of tbe levee breaking. It is an elementary principle that a party claiming damages must not be in fault in contributing to them by his own want of proper care. Such care must extend to tbe protection from further loss after tbe act complained of occurs. If such party fails to use such diligence, bis negligence is regarded as contributing to bis injury. Had tbe jury answered tbe issue “Yes,” then, as the legal effect, the appellee would have been denied a recovery. It would seem, therefore, that tbe issue as submitted to tbe jury, sufficiently covered tbe facts of the case, and that reversible error may not be predicated upon tbe refusal to give tbe requested charge.

Tbe appellant points out under proper assignments of error that tbe appellee was erroneously permitted to offer evidence showing that appellant repaired and paid for the break in tbe levee. It is claimed that tbe evidence was intended to be considered as showing prior negligence. It is well settled that subsequent repairs cannot be shown for tbe purpose of proving prior negligence. But tbe appellee claims, and in that view there was no error, that tbe evidence was merely to show control by appellant over the excavation made under the levee at tbe time it was made.' 45 O. J. p. 1235.

We have examined all the other assignments of error and conclude that reversible error may not be predicated thereon.

The judgment is affirmed.  