Without being able to assent to all that is said in the opinion of Judge Hunter, I nevertheless agree to the disposition made of the appeal as announced by him.
In the case of Lee v. Railway, 89 Texas, on page 588, our Supreme Court, in an opinion by Associate Justice Brown, say: "Negligence, whether of the plaintiff or defendant, is generally a question of fact, and becomes a question of law to be decided by the court only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question; in other words, to authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it."
The rule so announced is reiterated and approved in Choate v. Railway, 90 Tex. 88. In view of which, and in view of the different conclusions drawn from the facts by my distinguished associates, it is perhaps quite natural that I hesitate to say that the evidence is such that there is no room for ordinary minds to differ in the conclusion to be drawn therefrom. However, I do not wish to be understood as passing upon the sufficiency of the evidence to sustain the theory that the killing was by the passenger train rather than by some one of the other west-bound trains that night. If this be assumed, the evidence recited in Judge Hunter's opinion would seem amply sufficient to raise the issue of negligence on appellant's part. It may be said that the evidence fails to exclude contributory negligence on the part of the deceased boys. Is this required of appellants under the circumstances? There was evidence tending to show that the boys were not trespassers upon the track, and the record is absolutely silent as to the circumstances immediately attending their death. If licensees, the mere fact that the boys went upon the track does not conclusively, or as a matter of law, establish negligence on their part proximately contributing to their death. Railway v. Phillips, 37 S.W. Rep., 621; Law v. Railway, 4 Texas Ct. Rep., 552; Railway v. Watkins, 29 S.W. Rep., 232. The burden to establish this purely defensive matter was upon appellee. At least evidences of the dreadful collision and result must have been left upon the engine or train causing the same; the power to produce the operatives of such train and hence perhaps to afford an explanation of the circumstances is with appellee. So that in the absence of an explanation and of effort to explain on the part of the appellee company, it would seem that in *Page 584 the interest of human life the evidence was such as to require the submission of the issue of negligence to the jury regardless of the particular train by which the boys were killed. Washington v. Railway, 90 Tex. 320, and authorities there cited. See also the rule in this State as to the burden of proof, and the reasons therefor in cases of property destroyed while in possession of railway company as shipper, and in cases of injuries to a passenger. Ryan v. Railway, 65 Tex. 18, et seq.; Railway v. Smith, 74 Tex. 278.
Stephens, Associate Justice, dissents upon the ground that the evidence utterly failed to make a case for the jury, but left all to speculation and conjecture as to how the accident occurred or who was to blame for it.