On account of his absence, the writer did not sit in the original disposition of this appeal by the majority of the court. However, after consideration thereof on the motion for rehearing, he has reached the following conclusions. He concurs with the majority in the conclusions reached on all assignments of error except that addressed to the action of the trial court in refusing appellant's request for an instructed verdict in its favor as to the plaintiffs' suit in its entirety. The majority of this court has overruled appellants' assignment of error addressed to that ruling on the ground that the evidence did not conclusively show that deceased was guilty of contributory negligence for reasons noted in the opinion, which may be briefly stated as follows:
First, because the evidence was sufficient to show that by reason of defendant's depot building deceased could not and did not see the train until he was almost on the railroad track and too late to escape injury; second, even though the jury had believed that deceased heard the whistle of the locomotive *Page 823 and had seen its headlight, still they would have been warranted in finding that he might reasonably have concluded that the whistle and headlight were from one of the other engines shown to have been north of the crossing; third, assuming that he heard the whistle of the train in question and saw its headlight, yet the jury was warranted in concluding that he assumed, and was warranted in assuming, that the train would not run at the speed it was running and which was in violation of the law, and but for which excessive speed he would have crossed the track without injury. I respectfully dissent from that ruling of the majority and believe that the trial court erred in refusing appellant's request for an instructed verdict in its favor for the following reasons:
Plaintiff introduced the following named witnesses: H. D. Miller, who was approaching the crossing from the west and just behind the deceased, and driving a bus; R. H. Boyce and W. H. Hill, who were traveling west in the same car, which was stopped on the east side of the crossing; and W. W. Finney, who was traveling in another auto in a westerly direction and whose car was likewise stopped at the east side of the crossing. And according to the uncontradicted testimony of those witnesses, proof of the following facts was conclusively established: As appellant's train approached the crossing where the accident happened and at a distance of at least 100 yards north of the crossing, the locomotive whistle was sounded and the bell rung and the bell kept ringing as it moved toward the crossing. It was then dark and the headlight of the engine was shining down the track to the south and across the place of the accident. All those witnesses heard the blasts of the whistle and the ringing of the bell, and saw the reflection of the headlight down the track; and all stopped their cars to wait for the train to pass the crossing; and their testimony was also corroborated by other witnesses, including T. R. Thomas, introduced by the defendant, who was riding on the bus with said witness H. D. Miller; and as the deceased approached the crossing from the west side, the two cars in which witnesses Boyce, Hill, and Finney were riding had already stopped and were standing on the east side and were facing the deceased and they were in plain view of the deceased. When Miller stopped his bus he was 150 feet west of the crossing; he then saw deceased in his Ford car ahead of him approaching the crossing from the west at a speed of about ten miles an hour at a distance of some 30 or 40 feet from the crossing. Other evidence introduced showed conclusively that at that point deceased had already passed the Fort Worth Denver Railway track on the west, thus showing that there was then no other track ahead of the deceased on which the train could have been moving except appellant's track on which the accident occurred. According to the further testimony of Miller, his view of the coming train was obstructed by appellant's depot building until the locomotive passed the south end of that building, which other evidence showed was about 82 feet north of the crossing in question; and the jury would have been warranted in finding that the deceased did not see the locomotive or train sooner than Miller saw it; and other testimony introduced tended to show and was sufficient to support a finding that when deceased first saw the locomotive approaching he was then about to go upon the crossing or was so near thereto as to render it impossible for him then to stop his car in time to avoid being struck. Furthermore, testimony introduced showed that deceased was familiar with the crossing and its surroundings and that he had frequently driven over it prior to the time of the accident.
Assuming that the deceased did not see the train until it was too late for him to stop his car before going on the crossing, yet that fact was no excuse for his failing to avoid the accident by stopping his car before he reached the crossing, since, according to the uncontradicted testimony noted above, before he saw the train, he must necessarily have heard the signals sounded by the locomotive and seen the reflection of the headlight down the track immediately in front of him, and therefore must have known of the train's approach in time to have stopped his car before reaching the crossing. The failure to see the train sooner than he did see it would become material in the event only that he did not sooner know of its approach. And therefore the fact that his view of the train was obstructed by the depot building, of itself, furnishes no proper basis for denying appellant's request for an instructed verdict. Furthermore, accepting as true the testimony of some of plaintiffs' witnesses already noted, that by reason of the location of the depot building deceased was unable to see the train until the front of the locomotive reached a point at or about the south end of that building, and which testimony is stressed in briefs for appellees, then it must follow that in that situation it was obviously more hazardous for deceased to continue his course across the track without stopping, and manifestly inexcusable in him to take such a risk when, from the headlight of the engine, noise of the train, locomotive signals, and the stopping of two autos in front of him on the east side of the crossing, he must have known before seeing the train that it was approaching and in close proximity to the crossing, and that it might probably reach it before he could pass over.
The further contention that the jury might have concluded that the deceased probably believed that the locomotive's signal which he *Page 824 heard, and the headlight which was shining down the track, emanated from some other engine shown to have been in the yards north of the crossing at the time of the accident, is equally untenable, since the shining of the headlight down and on the track immediately in front of him and plainly in his view would conclusively refute such an inference.
The further point made that the jury reasonably could and probably might have drawn the inference that when deceased saw the train approaching he assumed that it was not running faster than eighteen miles an hour because that was the limit of speed fixed by the city ordinance, and that by reason of that assumption the jury reasonably could have concluded that he was not guilty of negligence in undertaking to cross the track on the occasion in controversy.
Notwithstanding the fact that it conclusively appears that had not the train been running at a speed in excess of 18 miles an hour, deceased would have cleared the track in time to escape being struck, yet in the opinion of the writer, appellee's contention, just stated, is untenable for the reason that in order to sustain it, it would be necessary to indulge several inferences, and to build one upon another, all without any direct evidence to prove any of the facts so presumed, as follows: First, the inference that deceased knew of the speed ordinance of the city in question, and had it in mind when he saw the train approaching; second, that he then estimated the distance the locomotive was from the crossing at that time, and also the rate it was traveling, and also the rate of speed his automobile was moving; and, third, that after considering all those facts and circumstances, he reached the conclusion that he would have time sufficient to pass over the crossing before the locomotive reached it. And in this connection it is to be noted that according to plaintiff's contention, deceased did not see the train until the locomotive reached a point at or about the south end of the depot building; and according to undisputed proof the south end of that building was only 82 feet from the crossing, thus rendering it extremely doubtful, to say the least, that he then had time to consider the facts so inferred. As announced by our Supreme Court in Fort Worth Belt Ry. Co. v. Jones, 106 Tex. 345, 166 S.W. 1130, 1132:
"A presumption of fact cannot rest upon a fact presumed. The fact relied on to sup port the presumption must be proved."
And in that opinion the court quoted with approval the following from another authority cited:
"No inference of fact should be drawn from premises which are uncertain. Facts upon which an inference may legitimately rest must be established by direct evidence, as if they were the facts in issue. One presumption cannot be based on another presumption."
Nor could a further inference be indulged that the deceased expected a watchman to be at the crossing to give signals of the approach of the train and relied upon him to do so, because there was no watchman present at the crossing; and, furthermore, he already knew that the train was approaching, and could not, in reason, ignore its approach merely because no watchman had warned him of it. This point was not made the basis of the opinion of the majority in overruling the assignment of error now under discussion, but I deem it proper to note it, since negligence in failing to have a watchman at the crossing was made one of the grounds for a recovery by the plaintiffs.
In International G. N. Ry. Co. v. Edwards, 100 Tex. 22,93 S.W. 106, a judgment in favor of the plaintiff for an injury sustained by him in being struck by the engine of a passing train at the crossing of a railway over a public country road was reversed by the Supreme Court, and judgment was rendered by that court denying a recovery. In that case the following was said:
"The evidence, without contradiction, shows that the plaintiff walked along the road at night, approaching the railroad obliquely with his side towards it, until he came near the crossing when he turned with the road across the track, and was struck as he reached the center thereof. The train was visible by its electric headlight upon a straight track for a mile or more before it reached the crossing and the noise of its motion was plainly audible. Plaintiff admits that, before stepping on the track, he neither looked, nor listened for the train, although he was familiar with the crossing, and knew of the frequent passing of trains; and that he could have seen and heard it, had he done so. All of the other evidence is to the same effect. He relies alone upon the fact, which the evidence is sufficient to prove, that the whistle was not blown nor the bell rung as required by the statute, claiming that he was listening for those signals, and, because he did not hear them, did not look for the train nor pay any attention to the noise it made.
"The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty of negligence. This is the precise attitude of the plaintiff, when he claims that he was not bound to look out for himself until the statutory signals were given. His claim cannot be admitted without denying the rule which exacted the duty of due care on his part, a duty as binding on him *Page 825 as was the duty of giving signals binding on the defendant. The case is easily distinguished from those in which this court has held that, under the facts thereof, it would have been improper for the courts to have instructed that it was the duty of the travelers to do any particular thing as a measure of due care, such as to look and listen, it being the function of the jury to say what precautions were called for by the particular situation. Those cases presented issues for the jury to determine as to whether or not the care taken was sufficient, and not bare facts, like those in this case, establishing that no care whatever was taken and offering no excuse for its absence except a reliance on the other party. * * *
"While persons using a railway crossing have the right to expect that the law requiring signals will be obeyed, this is not a substitute for the duty of exercising care for themselves and they are not excused from that duty by the fault of the other party. No case in this court has allowed a recovery upon facts such as these and the judgment cannot be permitted to stand without abolishing the rule recognized by all authority, requiring the exercise of ordinary prudence on the part of persons crossing railroad tracks."
In the case of Galveston, H. S. A. Ry. Co. v. Price (Tex.Com.App.)240 S.W. 524, 526, a judgment in favor of Mrs. M. S. Price against the railroad company for damages for the death of her husband, who was killed while in the act of crossing the defendant's track at its intersection with a public street in the town of Luling, was reversed by the Supreme Court and a judgment was rendered denying plaintiff any recovery, in accordance with the opinion of the Commission of Appeals. In that opinion there is an extended review of many prior decisions, and the conclusions reached in that case are reflected in the following excerpts from the opinion:
"The uncontradicted evidence and the specific findings of the jury present a clear case of a pedestrian stepping in front of a slowly moving train under circumstances which present no excuse for his not discovering it.
"The contention of defendant in error that Mr. Price was not guilty of contributory negligence as a matter of law is based upon the repeated holdings of our Supreme Court to the effect that the law does not prescribe any particular acts or omissions as constituting ordinary care or its absence; that in accordance with this rule it is not negligence as a matter of law for one about to cross a railroad track not to stop, look or listen, and that whether a failure to do so in a particular instance constitutes a failure to exercise ordinary care is usually a question of fact to be determined by a jury. * * *
"We do not regard any of the decisions of our Supreme Court as in any way trenching upon the rule that negligence and contributory negligence do become questions of law, when but one reasonable conclusion can be drawn from the facts and circumstances of the case. The specific question here presented is whether one who in the possession of his faculties steps immediately in front of a moving train, the approach of which is unobstructed from his view, and which could be seen and heard by him by the use of his ordinary faculties or by taking any precautions whatever, is guilty of contributory negligence as a matter of law when he fails to use his ordinary faculties and as a result thereof is injured.
"There are several cases by our Supreme Court in which this precise question has been adjudicated, in each of which the answer was in the affirmative. Railway v. Bracken, 59 Tex. 71; Railway v. Kutac, 72 Tex. 647,11 S.W. 127; Railway v. Dean, 76 Tex. 73, 13 S.W. 45; Sanches v. Railway, 88 Tex. 117, 30 S.W. 431; Railway v. Edwards, 100 Tex. 22,93 S.W. 106; Bennett v. Railway, 36 Tex. Civ. App. 459, 82 S.W. 333; Railway v. Kauffmann, 46 Tex. Civ. App. 72, 101 S.W. 817. Writs of error were refused in the last two cases. The basis of this rule is embraced in the following quotation from Railway v. Gaddis (Tex.Com.App.) 208 S.W. 895: `All men in possession of their faculties are charged with knowledge that a railroad track is a dangerous place, and the law will not permit them to go upon the track, even at a public highway, without being charged with a recognition of the danger attending such action and the use of such care as ordinary prudence would dictate in so doing. Where no care whatever has been exercised, our courts uniformly hold that contributory negligence exists as a matter of law, and recovery is denied.'"
And the court further quotes from opinions of the Supreme Court, including the following from Sabine East Texas Ry. Co. v. Dean,76 Tex. 73, 13 S.W. 45, in which case a judgment against the railroad company in favor of the widow and children of John Dean, who met his death by being run over by one of defendant's trains, was reversed and judgment was rendered in favor of the railroad company, and after referring to the testimony introduced, the court used this language:
"The `evidence is not contradicted. But one conclusion can be drawn from it, and that is that when there was nothing to prevent his seeing his danger he heedlessly stepped upon the track at the very moment of the collision.'"
Many other decisions might be cited in which judgments in favor of persons injured on railroad tracks were reversed and judgments were rendered in favor of the defendants upon the conclusions reached by the courts of last resort that the injured persons *Page 826 were guilty of contributory negligence as a matter of law. We shall cite only a few of them: Northern Texas Traction Co. v. White (Tex.Civ.App.)19 S.W.2d 416 (writ dismissed); Ft. Worth Denver City Ry. Co. v. Bell (Tex.Civ.App.) 14 S.W.2d 856 (writ dismissed); Texas N. O. Ry. Co. v. Wagner (Tex.Civ.App.) 262 S.W. 902 (writ dismissed 114 Tex. 375,269 S.W. 1024); Frias v. G., H. S. A. Ry. Co. (Tex.Civ.App.)266 S.W. 547 (writ dismissed); San Antonio A. P. Ry. Co. v. Singletary (Tex.Civ.App.) 251 S.W. 325 (writ dismissed). See, also, Baltimore O. Ry. Co. v. Goodman, 275 U.S. 66, 48 S. Ct. 24,72 L. Ed. 167, 56 A.L.R. 645.
While many other decisions might be cited in which it was held that the particular facts of those cases did not conclusively show, as a matter of law, that the injured party was guilty of contributory negligence, yet I believe they are not in conflict with the authorities cited above when properly analyzed. Furthermore, in an opinion of the Commission of Appeals, approved by the Supreme Court, in the case of Lancaster v. Bowder, 256 S.W. 905, it was held that there was no conflict between that line of cases typified by the case of International G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S.W. 106, and including many other decisions expressly mentioned — in all of which it was held that the persons injured were guilty of contributory negligence as a matter of law — and subsequent decisions in which it was held that whether or not the persons injured were guilty of contributory negligence was a question for the jury and not one of law to be decided by the court.
Tested by the decisions cited above, and here relied on, which are believed to be especially applicable to the facts of this case, the writer has reached the conclusion that the evidence introduced conclusively showed, as a matter of law, that the deceased was guilty of negligence proximately contributing to his injury in attempting to cross appellant's track, under the uncontradicted facts above related, and therefore that the assignment of error now under discussion should be sustained, the judgment of the trial court reversed, and judgment here rendered that appellees take nothing by this suit. *Page 827