In order that our reasons for reversing and remanding this case may be a little more fully stated, we will briefly summarize the evidence and apply the facts, as we understand them, to the only issue involved in this appeal.
As already stated in the opinion of Associate Justice O'QUINN, the switch track in question was used only one time each day. The driver of the automobile, Hargraves, and McNeel, one of the plaintiffs, both testified that although they had been over the crossing numerous times, they had never seen a train on this track before. The locomotive was backing and pulling a string of twenty-three freight cars in front of the locomotive and pushing two cars on the back from the west towards the crossing. The evidence raises the issue that there was no light on the end of the train as it entered the highway and no one was there to give signals or to pilot the train across the road. In fact, the evidence raises the issue that no signals or warning of any kind were given, so that persons using the highway would know that a train was preparing to cross. There was some evidence by the defendant that one man, or possibly two, were on the train with lighted lanterns, but, as the verdict was instructed, we must consider the evidence in its most favorable light from the standpoint of the injured party just before and at the time of the accident, rejecting all evidence favorable to the defendant. Barron v. Houston E. W. T. R. Co. (Tex.Com.App.) 249 S.W. 825.
The automobile in which McNeel, the injured party, was riding approached the crossing from the north and the driver saw the end of the train just about the time it reached the edge of the pavement. McNeel, the injured party, says it was within about 2 or 3 feet of the pavement. Both parties give the distance from the crossing at the time the train was seen at from 75 to 100 feet. The driver immediately applied his brakes and made every effort in his power, according to his testimony, to stop the automobile and avoid a collision with the train. He says, as we interpret his testimony, that he did not believe he could stop before the crossing was reached, but tried; he thought the train might stop before the freight car entirely crossed the pavement and in that event he thought he could go around the end of the train. The train did not stop so he ran into the ditch on the left-hand side of the highway in order to avoid a collision. He went to the left as he had no chance to get around the right end of the train on account of the long string of freight cars. He states that if he had not gone into the ditch he would have hit the train. The place of the accident was outside the city limits of Beaumont and forty miles an hour was not an unlawful rate of speed. The driver testified he was looking straight ahead and did not look to the right. The driver also testified that the car at the end of the train was about the same color as the pavement. As it was dark at the time, this fact would be an additional explanation as why he did not see the train sooner. It was a question of fact for the jury, under the evidence in this case, as to the distance from the crossing the driver and injured party should have commenced exercising some care to discover whether a train was about to cross the highway. Barron v. Houston E. W. T. R. Co., supra, and cases therein cited.
It is now too well settled to admit of argument that it is not contributory negligence, as a matter of law, for a person to fail to stop, look, and listen before going upon a railroad track. It is contended that the driver of the automobile was guilty of negligence which contributed to the accident in failing to look to the west of the highway. He says he was watching the road ahead. It is our opinion that in keeping a close *Page 576 lookout ahead, under the facts and circumstances of this case, his conduct was more in keeping with the conduct of a careful man than a careless man. In any event, we believe it was an issue for the jury. We think our conclusions are supported by the following authorities: Trochta v. M. K. T. Ry. Co. (Com.App.) 218 S.W. 1038; Lancaster v. Browder (Tex.Com.App.) 256 S.W. 905; Freeman v. Galveston, H. S. A. R. Co. (Tex.Com.App.) 285 S.W. 607; Barron v. Houston E. W. T. R. Co., supra; and many other cases of like holding not necessary to cite.
The cases relied on to support the instructed verdict are not, in our opinion, in point as applied to the facts of this case. In Robinson v. Houston Belt Terminal Ry. Co. (Tex.Civ.App.) 23 S.W.2d 894, the accident took place within the city limits of the city of Houston. The plaintiff, Robinson, ran his motorcycle into a moving train which was across the highway. We gather from the opinion that the track on which the train was moving was a main line track of the company. We should think it would be negligence for a person to run into a train blocking a paved street.
In the case of Texas Mex. Ry. Co. v. Hoy (Tex.Com.App.) 24 S.W.2d 18, it was held that it was contributory negligence, as a matter of law, to drive an automobile into a tank car which was standing on the main line of the railroad company blocking one of the principal thoroughfares of the city of Laredo. It was shown that the injured party was thoroughly familiar with the railroad crossing and knew that trains or cars might be using or occupying the same at any time of the day or night. These facts, we think, are materially different from the evidence in the case under consideration.
In Murphy v. Milheiser (Tex.Civ.App.) 30 S.W.2d 586, the injured party was riding in an automobile traveling eighty miles an hour on the highway between Galveston and Houston. This speed was maintained for about twenty-five or thirty miles before the car turned over. The injured party was suing the owner and driver of the car for his negligence in traveling at this excessive rate of speed. There was no question raised in this case that the speed was not the cause of the accident and, as the rate of speed was a violation of the law, it was negligence per se. The injured party was familiar with driving automobiles and knew that the car was being driven at eighty miles an hour and made no protest. The court there properly held that the negligence of the driver would be imputed to him and that he was guilty of negligence, as a matter of law, in not protesting.
In Missouri-Kansas-Texas R. Co. v. Cheek (Tex.Civ.App.) 18 S.W.2d 804, a man driving a team of young mules parallel to the highway, his wagon being loaded with hay, sued the railroad company for damages caused by one of its trains frightening the team and causing them to run away and overturn the wagon. The driver was on top of the load of hay and he was injured. The act of negligence was that the engineer caused an unusual and unnecessary emission of steam and noise, which was calculated to frighten the team driven by the plaintiff. On defensive issues of negligence on the part of the plaintiff the jury found that the plaintiff was guilty of negligence in driving a team and wagon upon the highway at the place in question and loaded in the manner it was loaded; that the plaintiff was guilty of negligence in failing to stop the team and get off the wagon when he discovered the train approaching; and that the negligence of the plaintiff in these respects caused or contributed to his injury. The jury found the railroad company guilty of negligence, and notwithstanding the findings that the plaintiff was guilty of contributory negligence, the trial court entered judgment against the defendant for $4,000. There was no statement of facts, but the case was appealed solely on the question that under the verdict of the jury judgment should have been rendered for the defendant. The Court of Civil Appeals necessarily sustained that contention.
The case of Texas N. O. Ry. Co. v. Adams (Tex.Civ.App.)27 S.W.2d 331, is relied upon by appellee in its brief to sustain the judgment herein appealed from. The opinion in that case was written by Associate Justice O'Quinn of this court. In that case the driver of an automobile ran into a locomotive while it was backing its engine and tender across a public road, preparing to make a coupling with freight cars standing on the west side of the crossing. The testimony showed that the headlight of the locomotive was burning and that several lights in the engine cab were also burning; that there was an electric red light with an electric wigwag at the crossing and fire was flashing from the oil pan of the engine. The plaintiff testified that he saw the lights of the engine when he was about 250 yards from the crossing and that he could have seen the locomotive on the crossing when he was at least 200 feet from the track. The headlights of his car were burning and there was nothing to keep him from seeing the locomotive at the crossing. He says that he did not actually see it until he was ten feet away. Even under this state of facts the majority of the court was of the opinion that the plaintiff was not guilty of contributory negligence as a matter of law, Judge O'Quinn being the only member of the court who thought the trial court should have instructed a verdict for the *Page 577 defendant on that issue. The case was reversed and rendered because all members of the court were agreed that no actionable negligence on the part of the defendant was shown.
The plaintiff in the case under consideration alleged negligence on the part of the defendant railroad in failing to have a flagman on the end of the train and in moving the train into the highway without being able to observe that persons using the highway were approaching the crossing, and failing to have any light, fusee, or sparkler at the end of the train, and other acts of negligence, alleging that the defendant used no precaution to warn people using the highway that a train was about to cross. The evidence was sufficient to raise an issue as to one or more of these acts of negligence alleged, and that such negligence was the proximate cause of the injury.
Believing that the issue of contributory negligence was one for the jury, we, therefore, are of the opinion that the judgment of the trial court should be reversed, and the cause remanded for a new trial.