The appellant requested, and the court refused to give, the following:
"Did the plaintiff, on the occasion in question, before attempting to make the crossing, and at least 30 feet distant therefrom, reduce the rate of speed of the automobile to not exceeding 6 miles an hour?"
It is contended that there was error in refusing to submit the above as a special issue, because the violation of the law was pleaded, and because the undisputed evidence shows that the view of the crossing was obscured within the meaning of article 8201 of the Penal Code (Vernon's Ann. Pen. Code Supp. 1918), and there was evidence that appellee failed to comply with its provisions. The evidence is conflicting as to whether appellee reduced the rate of speed of the automobile to 6 miles an hour before attempting to make the crossing. But the question is, Was "the view of said crossing obscured, either wholly or partially," within the meaning of the above article of the Penal Code? As heretofore determined by this court, the act, in virtue of its terms, does not apply where the crossing itself, as a passageway over the track, can be plainly seen by the driver of the automobile, in an open, straight street crossing the railway track at right angles. Railway Co. v. Mallard (Tex.Civ.App.) 262 S.W. 789. In that case the railway track ran north and south, the street ran straight east and west, crossing the railway track at right angles, and the appellee could plainly see the crossing ahead of him for quite a distance. The weeds that grew along the right of way on his left did not in any way hinder his seeing the crossing or "intersection of the railway and road" directly ahead of him. In the case of Ry. Co. v. Singletary (Tex.Civ.App.) 251 S.W. 325, quite a different state of facts appears. In this latter case, the road or street "parallels the railway a mile or more before turning at right angles across the track. The highway paralleling the railway turned sharply both to the right and left opposite the place of the accident." The deceased in that case could not see the crossing, as a passageway, until he "turned sharply east and undertook the crossing," 50 feet east of the turn of the public road.
The instant appeal is ruled by the Mallard Case, supra, since the railway track runs north and south and the street runs straight east and west, crossing the railway track at right angles. The brick buildings located on the appellee's right did not, for some distance, in any way prevent him from plainly seeing the crossing, as a passageway, ahead of him. Therefore the issue of contributory negligence would be determined, not upon the violation of a penal statute, but upon whether or not common prudence was used by appellee under the *Page 295 circumstances. The court charged the jury that it was appellee's duty, in approaching the crossing, to exercise ordinary care to discover approaching trains, and that, if he could have discovered the approaching train by slowing down, or looking and listening, the failure to do so would be contributory negligence.
We have considered all the points, very clearly presented for review, and think that reversible error does not appear in the record.
The judgment is affirmed.