What are tbe tests established by law in determining wben tbe negligence of tbe driver of an automobile “is tbe sole, proxi*493mate cause” of an injury to a passenger therein resulting from the collision between the automobile and a train at a grade crossing?
This Court has held with unbroken uniformity that the negligence of the driver of an automobile is not ordinarily imputed to a passenger who neither owns the car nor has any control of the car or driver, and who is not engaged in a joint enterprise with the driver at the time of his injury. Nevertheless, if the negligence of the driver is the “sole, proximate cause” of the injury, the passenger is not entitled to recover. Earwood, v. R. R., 192 N. C., 27, 133 S. E., 180.
It is not deemed essential to elaborate the definition of proximate cause or to discuss the intricate learning developed by courts and text-writers in dealing with that elusive term. Courts generally are committed to the proposition that if the facts are admitted and so clear that “there can be no two opinions among men of fair minds,” or that “only one inference may be drawn from them,” it is the duty of the court to declare whether a given act or series of acts is the proximate cause of the injury. Otherwise the question must be submitted to a jury. Harton v. Telephone Co., 141 N. C., 455, 54 S. E., 299; Taylor v. Stewart, 172 N. C., 203, 90 S. E., 134; Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1.
In the present case the facts are set out in the complaint and the demurrers admit them to be true. Hence the question to be determined is whether such facts produce the conclusion that the acts of the driver constituted “the sole proximate cause of the injury.”
The usual tests heretofore recognized by this Court may be classified as follows: (1) The negligence of the driver must be such as to bar his recovery if he should sue for any injury sustained by him. Pridgen v. Produce Co., 199 N. C., 560, 155 S. E., 247. In that case, Connor, J., writes: “If the conduct of the driver of the automobile was not such negligence as would bar his recovery, it is manifest that such conduct was not negligence insulating the negligence of the defendant, and therefore relieving defendant of liability to the plaintiff in this action, because its negligence was not the proximate cause of her injuries.”
(2) The negligence of the driver must be palpable and gross. Herman v. R. R., 197 N. C., 718, 150 S. E., 361. In that case, Stacy, G. J., says: “Even if the engineer or fireman did fail to ring the bell or sound the whistle, of which there is only negative testimony with positive evidence to the contrary, still the defendant had a right to operate the train over its track, and the negligence of the driver of the automobile is so palpable and gross, as shown by plaintiff’s own witnesses, as to render his negligence the sole proximate cause of the injury.”
*494(3) If the act of the driver is a new, independent, efficient and wrongful cause, intervening between the original wrongful act and the injury, then such act of such driver is deemed to be the proximate cause of the injury, upon the theory that the primary or original negligence was thereby insulated. Craver v. Cotton Mills, 196 N. C., 330, 145 S. E., 510. In that case, Adams, J., declares the law to be: “While there may be more than one proximate cause, that which is new and entirely independent breaks the sequence of events and insulates the original or primary negligence. This principle would apply if it should be granted that the defendant was negligent with respect to the light in the tower.” To the same effect is the opinion of Clarkson, J., in Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1: “It is well settled that where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether the act was the proximate cause of the injury or not. In the instant case the facts are all admitted, and the independent cause intervening — Qualls’ pushing Line-berry under the train — was the sole proximate cause of the injury.”
(4) The new, independent, efficient intervening cause must begin to operate subsequent to the original act of negligence and continue to operate until the instant of injury. Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761.
Foreseeability is the test of whether the intervening act is such a new, independent and efficient cause as to insulate the original negligent act. That is to say, if the original wrongdoer could reasonably foresee the intervening act and resultant injury, then the sequence of events is not broken by a new and independent cause, and in such event the original wrongdoer remains liable. This idea was expressed by Hoke, J., in Harton v. Telephone Co., 141 N. C., 455, as'follows: “It will be seen that the test laid down by all of these writers, by which to determine whether the intervening act of an intelligent agent which has become the efficient cause of an injury, shall be considered a new and independent cause, breaking the sequence of events put in motion by the original negligence of the defendant, is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected. If the intervening act was of that character, then the sequence of events put in motidn by the primary wrong is not broken, and this may still be held the proximate cause of the injury. Numerous and well considered decisions by courts of the highest authority show that this is a correct statement of the doctrine.”
The complaint paints the following picture: The driver of an automobile along a public road intersected by a railroad track, arrives at the crest of a hill 300 feet from the track. The hill is 22x/2 feet higher *495tban tbe track. His vision to tbe left is obstructed by shrubbery growing upon tbe right of way. There is a crossing sign plainly visible, and telegraph poles along the tracks give warning of the presence of a railroad. The'road is wet and slippery. Notwithstanding, the driver does not slacken his speed or attempt to bring his car under control, but drives ahead at the rate of 25 or 30 miles an hour. A heavy freight train, more than a half mile long, drawn by a large locomotive traveling at high speed, is approaching the crossing, but gives no signal. When the driver of the automobile reaches a point 69 feet from the track the freight train “burst into view at the crossing.” The law says to all drivers-that, when they approach within. 50 feet of an obstructed grade crossing, they must slow down to 15 miles an hour, but the voice of the law was unheeded. He attempted to stop the car, but he was operating it, under the circumstances, in such a manner that he could not control it, and thereupon he leaped from the car, leaving his passenger to his fate. The car plunges ahead and strikes the train at the first or second freight car behind the engine.
The allegations of the complaint, if supported by evidence, establish a cause of action against the defendant, King, and,.therefore, the question is: Was his negligence a new, independent and efficient cause breaking the sequence of events produced by the failure of a railroad to give a signal, and insulating or isolating such negligence, thereby becoming the “sole proximate cause” of the injury % Applying the tests recognized by law, could the engineer of the train in failing to give the signal reasonably foresee that the driver of the automobile, hearing a signal or seeing the train on the crossing 69 feet away, would not have control of his car or operate it in violation of law at such a speed that it could not be stopped within 69 feet ? The Court is of the opinion that the law did not impose upon the engineer the duty of foreseeing such negligent acts of the driver of the automobile. Foreseeability is not omniscience. “The law does not require omniscience.” Gant v. Gant, 197 N. C., 164, 148 S. E., 34.
Hence the demurrer of the Railroad Company should have been sustained. The judgment overruling the demurrer of defendant, King, is sustained.
Having disposed of the appeal as indicated, it is deemed unnecessary to discuss other exceptions appearing in the record.
Appeal by railroad reversed.
Appeal by King affirmed.