In this case the evidence was all introduced by plaintiff, and the court directed the jury to return a verdict for the defendant, there not being, as stated in the charge, sufficient evidence to warrant a recovery.
The proposition which appellee states represents the one issue in the case is, as stated by it, that the undisputed evidence established, as a matter of law, prima facie contributory negligence on the part of appellant's wife (the injured person); and then, with the burden of proof thrown on appellant, he did not show further facts from which the jury might have found the wife free from negligence.
Without going to the record, and taking the evidence as it is given in appellee's brief, we find testimony of the following facts: The injury occurred in the town of Beeville, at a street crossing, at about midday. Appellee's track ran along a street from north to south. Mrs. Hammon resided west of the track, and was on her way into town to make a purchase. The train which struck her was a freight train coming from the north. The depot was south from where she was struck, and south of the depot were the stock pens. At the time of the accident there was a train near the stock pens heading to the north. She had been accustomed to go into town crossing the track near the depot, but on this occasion, seeing this train at the pens, and looking northward, as she *Page 635 says she did, and seeing no train; she decided to cross above on Hefferman street, where she was hurt. It would seem from her evidence that when she looked north it was at the time she changed her course to go by Hefferman street, and there is no evidence that she looked northward again. She testified that she did not hear any whistle or bell, and did not know of the approach of the train until it struck her. One witness, who saw the accident from a point along the track south of where it happened, testified that he saw the train coming, and saw Mrs. Hammon on the west side of the railroad, going towards the track; that just before she got to the track, she checked up a little and turned and looked down the track instead of up the track, and then she turned and walked across; and got nearly across the track when the train struck her. There was evidence that on the west side of the track, close to where she approached, there was a thicket of wiesatche trees from about ten to fifteen feet high, the foliage beginning about twenty feet from the track and extending to a fence. There was also evidence that from about a block above a switch or spur of the track extending northward, and that there were some cars on this switch at the time of the accident, although it does not appear how many or at what precise place these cars were standing. It appeared that to a person standing near the track at the place of the accident, and looking up the track, there was nothing to obstruct the view of a train coming from the north; a witness testifying that he did not think cars standing on the switch would obstruct such view. There was testimony that a strong wind was blowing at the time from the south; that no whistle was sounded after the train left the cut, about 1100 feet off, and no bell rung; that the train was moving with great speed down a grade, and did not stop at Beeville.
In view of these facts it is claimed that the injured person's negligence was such (there being no evidence that she was seen by defendant's employes before her injury was inevitable) that she was debarred as a matter of law from recovering. To this we do not assent. The doctrine that has been sometimes applied in cases in this State, that a suspicion of negligence arising from the facts adduced by plaintiff places the burden on him to disprove contributory negligence, and without explanation by further evidence prevents his recovery, is now distinctly repudiated in this State, and we need not give it attention. Railway v. Shieder, 88 Tex. 165. The sole question to determine here is: Was the evidence of such a nature that a jury might reasonably find therefrom that her conduct on this occasion was consistent with ordinary care?
She was no trespasser on the tract. She had no notice of the train coming, and was engaged in crossing it at a public street crossing. She had some distance back from the track looked in the direction from which this train came, and saw none, and seeing one further down, at where she usually crossed to get to town, she concluded to cross on Hefferman street. The trees we have mentioned doubtless obstructed her view of the track for some of the distance over which she had to pass to *Page 636 get to the crossing, and just before she got to the crossing, whatever the jury might have concluded in this respect as to cars standing on the switch. The train was running down grade at a great speed, and as some witnesses say, without any signal; and a strong wind was blowing from the south. These facts were calculated to have some effect on her opportunity to observe a train approaching from that direction and upon her conduct, and having seen none when she started, and seeing and hearing none as she went, there would be no such palpable negligence in her going upon the track as would peremptorily defeat recovery, unless her failure under these circumstances before stepping upon the track to look up the tract has that effect in law. That such is not the case has been more than once decided in this State. Railway v. Neff, 87 Tex. 308, and cases cited.
It is not necessary to discuss the case further. In our opinion, the evidence was such as to make it proper to leave the question of her negligence to the jury. Reversed and remanded.
Reversed and remanded.