If it should be conceded that the testimony warranted findings involved in the verdict, that appellant was guilty of negligence in that (1) it obstructed the street with its train in violation of the statute (articles 1531e and 1531f, Vernon's Ann. Pen. Code), and (2) did not have its depot lighted as required by law (article 6591, Vernon's Statutes), we think it would nevertheless have to be held that the verdict was unauthorized, because the testimony did not warrant the further finding involved in it that such negligence was a proximate cause of the injury to appellee.
As to the obstruction of the street, we do not see that the case is materially different from De La Pena v. Railway Co., 32 Tex. Civ. App. 241,74 S.W. 58, and Railway Co. v. Kelly, 78 S.W. 372, and (Sup.) 80 S.W. 1197.
In the De La Pena Case the plaintiff, finding the street obstructed by a train and undertaking to go around it over a traveled path on the railway company's right of way, stepped into a hole and broke his leg. On the ground that the company was guilty of negligence in obstructing the street and in permitting the hole to be where it was on its right of way, the plaintiff sought a recovery of damages against the company. In affirming a judgment in the company's favor, based on an instructed verdict, the court said:
"No duty rested on the defendant to maintain the path along its right of way in a safe condition. * * * The obstruction of the crossing was not that which, in a natural and continuous sequence, unbroken by any new, independent cause, produced the accident which resulted in plaintiff's injury, and hence not its proximate cause."
In the Kelly Case the plaintiff undertook to go around a train obstructing the street by driving off of the street and over the company' tracks. One of the wheels of the vehicle in which he was riding went into a hole or depression in the tracks, causing the vehicle to lurch and throw plaintiff's wife, who was with him, to the ground, thereby injuring her. In reversing a judgment in the plaintiff's favor the court said:
"Because appellant may have been negligent in obstructing the street did not justify appellees in driving into a place with which they were unacquainted, upon the property of the railway company, where they had no right to be, and where the wrong in obstructing the street could not have justified them in going. The railroad company owed them no duty to keep its tracks so that they could drive over them safely except on highways and crossings, and they undertook to cross where they did at their own peril."
In the instant case, as in those cited, the plaintiff was off of the street and on the company's property when he was injured. If there is a material difference in the facts of the cases, it lies in this, that in the De La Pena and Kelly Oases the plaintiffs, respectively, fell and were injured because of defects they knew nothing about in the way they chose to *Page 590 use in going over the company's property, while in the instant case appellee did not fall because of a defect in the way he chose to use in crossing to the depot. Evidently, if negligence of the companies in the cases cited in obstructing the streets was not a proximate cause of injuries to the plaintiffs resulting from defects in ways they chose to use in passing around the trains, like negligence of appellant was not a proximate cause of the injury to appellee resulting from use he chose to make of the flat car as a way to go to the depot.
As to the failure of appellant, if it did fail, to have its depot sufficiently lighted, it is clear it was not a proximate cause of the accident. The way appellee chose to use in crossing to the depot was not provided for such use, and reasonably appellant could not have foreseen that appellee would use it as he did. As it could not, its failure to have the depot so lighted as to aid appellee in passing over and alighting from the car safely was not a proximate cause of the injury he suffered.
The judgment of the court below will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.