A paragraph of the court's charge reads as follows:
"Now, if you find from the evidence that the defendant's locomotive approached the crossing where the accident occurred at a high rate of speed, and that the employés of the defendant in charge of said locomotive approached the crossing without ringing the bell or sounding the whistle, or that the said employés of the defendant did not exercise ordinary care to discover the wagon in which the deceased was traveling, and you further find that such acts or omissions on the part of the defendant's employés, if any, constitute negligence on the part of the defendant's servants and employés, and you further find that such negligence, if any, was the proximate cause of the death of Cicero Miles, then you will find for plaintiff, unless you find that the said Cicero Miles himself was guilty of negligence which caused or contributed to cause his death."
The court did not err, it is thought, in authorizing the jury in this case to determine, as the charge did, whether or not the persons operating the engine were guilty of negligence proximately causing the death of Miles on account of the speed at which the engine was going when it struck the wagon, together with the failure to blow the whistle or ring the bell on approaching the crossing. Therefore assignments of error Nos. 1 and 6 are overruled.
"Negligence without which he would not have been injured," as used in the fourteenth section of the court's charge, means negligence proximately causing the injury. And the effect of the instruction is that the negligence of the deceased must proximately contribute to bring about the injury, as distinguished from a remote cause. The second assignment of error is overruled.
It is thought that in the circumstances of the case the court may not say as a matter of law that Cicero Miles was guilty of contributory negligence, or that the issue of discovered peril was not in the case. Railway Co. v. Tinon, 117 S.W. 936. And the several assignments raising these questions are overruled.
It is concluded that the verdict is not excessive, and that the eighteenth assignment of error should be overruled.
The remaining assignments of error do not present, it is thought, any reversible error, and they are overruled.
Judgment affirmed.