Error is predicated upon the refusal of the court to grant a new trial upon the ground that the verdict is contrary to the evidence, in that there was no such crossing used by the public at the place appellee was hurt as would make it the duty of the employés operating the cars to keep a watch for his presence there. As to whether there was a footpath commonly used by the public, leading across the railway track at the place of injury to the opening in the north fence, was a matter about which there is conflicting evidence. Taking the evidence offered by appellee, the jury could say that such footpath existed, and that for some time it had been commonly and extensively used by the public. In this state of the evidence, it is thought, the question was one entirely for the determination of the jury. And finding, as the jury were authorized to find from some of the evidence of appellee, that there had been for several years an extensive use of the footway by the public, an implied permission on the part of the appellant, such as is claimed by appellee, to use the yard and track as a footway, could be inferred. In such circumstances, the duty devolved upon the appellant, within the terms of the law, to use such amount of vigilance and caution as a person of ordinary prudence would use under like circumstances. Railway Co. v. Crosnoe, 72 Tex. 79, 10 S.W. 342; Railway Co. v. Smith, 87 Tex. 357,28 S.W. 520.
Therefore the first, second, and fourth assignments of error, it is concluded, should be overruled. And as the evidence raised an issue as to the extent and publicity of the use of the place by the public as a footway, the sixth assignment is overruled. And because the court's charge sufficiently submitted the question to the jury, the refusal to give the special charge complained of in the seventh assignment does not constitute ground for reversible error.
In view of the evidence, it is not thought that it could be held, as a matter of law, that the boy was guilty of contributory negligence, and therefore the third and fifth assignments of error are overruled.
In the thirteenth paragraph of his charge the court instructed the jury as follows:
"It was the duty of Dreeben Key to use ordinary care to protect himself against the dangers arising from the movement of the cars through the yards, and if he failed to exercise this degree of care in walking upon or crossing the track of the defendant, if he did so, you will find for the defendant; or if you find that the said Dreeben Key was injured at a place not commonly and habitually used for travel by the public with the knowledge and acquiescence of the defendant, you will find for the defendant; or if you shall find that Dreeben Key was sitting on the ground under or near the car at the time he was injured, if he was injured, you will find for the defendant."
This charge sufficiently covered the question of contributory negligence, and assignment No. 10 is overruled.
The court in the twelfth paragraph of his charge instructed the jury as follows:
"If you find from the evidence that Dreeben Key was guilty of contributory negligence, as this term has been defined to you, which caused or contributed to cause his injury, he cannot recover, even though you find that the defendant was guilty of negligence in causing him injury, if any. And in this connection you are instructed that the conduct of a person of tender years is not to be judged by the same rule which governs adults, for the law does not require that a person of tender years shall exercise the same degree of care and caution as a person of mature years, but only that degree of care and caution that a person of the same age, intelligence, and experience would reasonably be expected to use under the same or similar circumstances. Bearing in mind this instruction, if you find that he contributed to his injury by his failure to exercise ordinary care, you will find for the defendant."
The objection to this charge made in the trial court was:
"Because the facts show that Dreeben Key was of sufficient age to know the dangers from the cars."
The proposition is:
"Where a boy nine years old is injured in the railroad yard, and the evidence shows he knew the danger, and no evidence that he did not know the danger from the cars, then that matter should not be submitted to the jury."
The following evidence given by the father of the boy is all the evidence in the record pertaining to the question:
"Q. Was your boy of any intelligence? A. I suppose so. Q. Did you think he knew of the danger of the cars moving on towards the yard? A. I think he knew they would hurt *Page 495 him. Q. Did you think he had intelligence enough to get out of the way of the danger of the track? A. Sure I did."
Clearly the father's evidence as to the boy's appreciation of the danger of passing near the cars was opinionative in its nature, and not conclusive. The boy testified in the case, and his appearances were before the court and jury for observation and estimation of capacity to take care of himself and appreciate danger. He was of the age of nine years, according to the proof. In Railway Co. v. Voss, 159 S.W. 64, a charge like this was held harmless in the facts. And in view of the facts, and ruling only upon the precise objection made, it is concluded that reversible error was not committed.
The remaining assignments have been considered, and are overruled.
Affirmed.