Appellant prosecutes this appeal from a judgment rendered against it *Page 1020 for the sum of $7,000 in favor of the minor children of W. A. Dozier, Sr., who was killed by a passenger train of the appellant on September 27, 1911, near the town of Harrisburg, between the cities of Houston and Galveston. Appellant's line of railway between the cities mentioned crosses a public road running north and south to Harrisburg, known as the "Broadway Road." On the date mentioned the deceased was in a buggy, drawn by a mule, and, while crossing the track at the crossing mentioned, was struck and killed by an engine drawing a passenger train bound from Galveston to Houston.
The plaintiffs' right to recover was submitted upon three grounds duly pleaded: (a) Failure of the engineer to keep a proper lookout while approaching the crossing; (b) excessive speed, dangerous to those rightfully using the crossing; and (c) discovered peril. The defendant answered by general denial and a special plea of contributory negligence. Error is assigned to the eighth paragraph of the court's charge, which reads: "The burden is on the plaintiffs to prove by a preponderance of the evidence the facts which are submitted to you in this charge as material to their right to recover, and the burden is likewise upon the defendant company to prove by a preponderance of the evidence the facts which are submitted to you in this charge as material to its defense; but, in considering the matter of burden of proof, with reference to both parties, you will look to all the evidence, without regard to whether it was introduced by the one party or the other."
The paragraph of the court's charge presenting the case from the standpoint of the appellant reads: "On the other hand, if you do not believe from a preponderance of the evidence that the engineer failed to use the care a man of ordinary prudence would have done to discover the presence of the said Dozier at the crossing, and to avoid injuring him, or if you do not believe he ran the train at an excessive rate of speed, which was dangerous to persons upon, or about to enter upon, the said crossing, and on that account did not have the control of the train that was essential and necessary for him to have in order to avoid injuring persons at the crossing who were in the rightful use thereof, and who were using the same in the exercise of ordinary care, and if you do not believe from a preponderance of the evidence that the said engineer actually discovered the peril of said Dozier in time by slackening the speed of the train to have avoided injuring the said Dozier, or do not believe that a man of ordinary prudence, situated as the said engineer was, would have undertaken to avoid injuring the said deceased by slackening the speed of the train, under the circumstances, or if you do not believe, though the said engineer may have discovered the peril of the said Dozier, if there was such peril, and failed to slacken the speed of the train, that such failure was a proximate cause of the injury of said Dozier, you will, without inquiring further, return a verdict for the defendant. Or, if you believe from the evidence that what the engineer and fireman did, or omitted to do, was what a man of ordinary prudence, situated as they and each of them were, would or would not have done under the same or similar circumstances, you will likewise return a verdict for defendant."
If the paragraph of the court's charge upon the burden of proof had limited the burden resting upon defendant to the affirmative defensive issue of contributory negligence, it would have been entirely proper. However, it does not do so. It instructs that the burden is upon defendant to prove by a preponderance of the evidence the facts submitted as material to its "defense." Manifestly upon the issues of negligence vel non, submitted in the paragraph of the charge last quoted, there is no such burden. Viewing the charge from its most favorable point of view, it is contradictory, and, in our opinion, it was calculated to lead the jury to believe that the burden rested upon defendant to establish the negative of the issues of negligence vel non. Under the state of the evidence in this record, we are not prepared to hold that the error is a harmless one, under provisions of rule 62a (149 S.W. x).
A reversal of this case is also asked upon the ground that the verdict and judgment are unsupported by the evidence, in that it appears therefrom that the deceased was guilty of contributory negligence in driving upon the appellant's track in front of the approaching train which struck him, which was the proximate cause of his death, and, further, that the issue of discovered peril is not raised by the evidence. Chief Justice HARPER and myself are unable to concur in this view; but, in view of a reversal for the error in the charge above noted and of a retrial, we refrain from a discussion of the facts.
Associate Justice McKENZIE dissents, being of the opinion that the evidence is insufficient to support the judgment in the particulars noted, and that the cause should be reversed and rendered. He will later file an opinion setting forth his views upon this question.
Reversed and remanded for the error noted in the charge.