* Writ of error dismissed for want of jurisdiction March 29, 1922. The first assignment of error is predicated upon the refusal of the trial court to give a requested peremptory instruction to the jury to return a verdict for the defendant. The point made is that under the evidence Mr. Partney drove onto the track in front of the approaching train without exercising reasonable care to discover it, and was guilty of contributory negligence as a matter of law. It is believed that under the evidence it was an issue of fact for decision by the jury of whether or not Mr. Partney, in attempting to cross the track as he did, acted as a person of ordinary prudence would have acted under the same circumstances. Considering the condition and situation of the crossing at the time, and the care the plaintiff did take, the evidence is not, we think, such as to leave no room for ordinary minds to differ as to the conclusion to be drawn from it touching the degree of care under the circumstances used by him. Trochta v. Railway Co. (Com.App.) 218 S.W. 1038; Hines v. Arrant, 225 S.W. 767; Hines v. Messer,218 S.W. 611. This assignment of error, as well as the seventh assignment, we conclude should be overruled.
The second assignment of error is predicated upon the court's charge as follows:
"Under the ordinance of the city of Troup the operatives of the locomotive in question were forbidden to run the same within the corporate limits of the said city at a greater rate of speed than 6 miles an hour. If the operatives of the locomotive ran the same as it approached the crossing and passed over the same at a rate of speed in excess of 6 miles an hour, then they would be guilty of negligence."
The objection made to the charge is:
"There is no proof in this case that the town of Troup is legally incorporated under the laws of the state of Texas as a municipality, or that there was an ordinance legally adopted and published forbidding the running of trains within its limits in excess of 6 miles an hour."
There was introduced in evidence the order of the county judge of April 2, 1903, properly recorded in the minutes of the commissioners' court, declaring the result of an election held for that purpose, and the incorporation of the city of Troup as a city of more than 1,000 population; and there is evidence that the city of Troup has operated as an incorporated city or town during and since 1904 to the present time under the general laws of the state, having a mayor, aldermen, city attorney, and marshal. There is also in evidence a certified copy of the ordinance of the town of Troup, passed November 9, 1904, approved by the mayor of the city, with due proof made of its publication. There is, we think, sufficient proof of a legal incorporation. Articles 774 and 1041, R.S. And the ordinance was sufficiently proven to have been legally adopted. In view of this proof there can be no further question made in this case as to the legality of the corporate existence. Anderson Co. v. Railway Co., 52 Tex. 288; Carthage v. Burton, 51 Tex. Civ. App. 195,111 S.W. 440. The assignment is overruled.
The sixth assignment of error is directed to the amount of the verdict as being excessive. The jury did answer that the plaintiff failed to use ordinary care to mitigate the injury by proper treatment. But the court instructed the jury, in estimating the damages:
"That if in answering question 8 you find that the plaintiff failed to use such means or to submit to such treatment as a person of ordinary prudence would have used or submitted to under the same circumstances to heal his injury or to effect an improvement in the same or avoid aggravating the same, then the plaintiff cannot recover for any injuries which the evidence may show are attributable alone to such failure on his part, if any; but he would be entitled to recover, if at all, the damages only, if any, which are directly attributable to the original injuries, not including any increase or aggravation of injuries or condition which the evidence may show, if any, is attributable to any such failure or neglect of the plaintiff."
It will be presumed, in view of the charge, that the jury duly considered all the evidence with reference to the nature and extent of the original injuries, the treatment given at the hospital, and the conduct and steps taken by the plaintiff for the relief of his injuries, and that they awarded damages after making due allowance for any failure of the plaintiff to mitigate his injuries by submitting to proper treatment. *Page 169 There is considerable evidence of injury of a permanent character, disabling the plaintiff from his usual work, and the finding of the jury, as within their province, as to the amount of damages, should not, we think, be disturbed; there being no passion or bias indicated in any way in the record.
The judgment is affirmed.
On Rehearing. We grant the request of plaintiff in error for the incorporation in, and we hereby include in, the opinion disposing of this case the following testimony given by Partney: "Yes; when I drove between the ends of those two big automobile freight cars standing on the side track nearly 2 feet away, and when I drove out from there approaching the main line of the railway, I had to drive to where my engine would be hit by a train before I could see up and down the track, and as I drove out on that main line track I leaned over my steering wheel to peep towards the Troup depot, and I did peep toward the Troup depot and all the other way as well, to see if a train was coming. I looked both ways for that purpose, and it was coming right there at that time; that is right. I peeped over there because I thought one might be coming, sure, I thought it might come, and that is the reason why I was looking for it, I was expecting it. * * * If I did not stop and take any precaution in the world in time to see a train, so as to save myself, I did not see any negligence in it; I didn't have any — no, I did not stop in time for a train passing there to have failed to hit the truck. No; I did not get a view up and down the main line of the railroad in both directions, or in either direction, for an approaching train before my truck got in reach of a passing train. Yes; I knew when I drove up there that if a train were coming from either direction that I could not see it."