This is the second appeal of this cause. In two orderly trials juries have awarded recoveries to the appellees, and the able and experienced trial judge has as often declined to interfere. This court, however, without in either instance holding that any error was committed in the receipt or rejection of evidence, or in the giving or refusal of charges, has vetoed and held for naught both verdicts, solely upon the weight of the testimony. Its plain duty in such circumstances, so often enjoined as to have become a fixed principle in our appellate procedure, is to give the evidence tending to support the verdict the benefit of every reasonable intendment, with a view that it shall stand — not to select some that may be unfavorable and indulge in possible deductions from that alone. It seems to me that by no other process can a reversal be ordered, in the state of the record now before us.
The evidence which I think puts the issue of discovered peril in the case was in all essential respects undisputed, while upon the whole that favorable to the jury's finding on the matter so strongly preponderated in its support as to leave this court powerless to set it aside. It will be only briefly reviewed. The engineer of appellant's train, testifying in person upon this trial, after being catechised on cross-examination as to conflicting statements he had made about the situation at the time the fireman called to him to "Look out !" finally put the matter this way just before leaving the witness stand:
"When the fireman said, `Look out!' this man was on the south side of the main line coming toward the track, and he told me afterwards that from the way he was coming, the speed, that `I knew he was going to get on the track and be struck, and I hollered at you to look out.' Then I immediately applied the air, and at that time I was 50 or 60 or 70 feet from the crossing, and running about 18 or 20 miles an hour. The man was about 30 feet from the track then; that is what the fireman told me afterwards; and following that I saw the man when he came on the track and got in the position I have just described. That is what I have described to you, and that is exactly the way it happened. * * * When I said that the automobile was 30 feet south of the track, I do not mean that I saw it there, but that is what the fireman told me."
Elsewhere he testified as follows:
"The fireman said something to me about it before the collision. He said `Look out!' In my judgment I was some 50 or 75 feet from the crossing when the fireman hollered to me, `Look out!' * * * My judgment is that we must have been 50 or 75 feet from the point we struck when I first threw the lever; that is my best judgment. It might be more or less. I had not seen the automobile at that time, I am positive that the first time I saw the automobile was when the rear wheels of the automobile were on the north rail, and at that time I was 50 or 75 feet from it. Something like that." "We struck the rear wheel of the automobile. If he had gotten over the track one foot further we would not have struck him. Just the corner of the pilot on my side of the engine struck the rear wheel of the automobile. If he had come 6 inches further he would have cleared." "Before the fireman made that remark to me, `Look out!' he was looking ahead. * * * The fireman was a man named Traborn. He sits on the left-hand side of the cab, which is the same side from which the automobile was approaching. He had a plain and unobstructed view of the right of way and the approach to the right of way. The fireman was on his side and I on my side, and we were both looking ahead, and each of us had an unobstructed view of our respective sides of the locomotive." "Everything about the engine was in first-class shape. Brakes were first-class. The track was dry. The sum was shining. I made the stop in, it may have been, less than 75 or 100 feet. I did not measure it." "In my deposition Mr. Garrison asked me the question, `At the time you saw the automobile just before the collision, was he running slow or fast?' and I answered, `He was running about 12 or 15 miles an hour;' and that is what I said a while ago — 12 or 15 miles an hour."
Only two other witnesses testified about the speed of the automobile, Blake Stratton and the driver, G. O. Davis; Stratton saying that it started toward the track slowly, and that he did not again notice it till the accident happened, while Davis said:
"It is my best judgment that we were not exceeding four or five miles an hour from the time we left Orlando's store until we got struck; we run along at the same speed practically all the time; before either of us looked we were within 15 feet of the track."
The speed of the train at the same time was placed by its conductor, Mr. Younger, at 12 or 15 miles per hour, by its engineer, Mr. Williams, at 18 or 20 miles, and by the only remaining witnesses who ventured estimates, Blake Stratton and J. A. White, at about 20 miles and 35 or 40 miles, respectively. It is therefore apparent that the jury, who were neither asked to nor did they state any findings as to the speed of either the train or the automobile, were fully authorized to and may have made decidedly different ones from those appearing in the majority opinion, that is, 4 or 5 miles per hour for the automobile and 20 miles for the train. In illustration: They may have adopted the conductor's estimate of the speed of his train and the engineer's repeated one as to that of the automobile, about 12 to 15 miles per hour for each, thus making the rate of their movements approximately the same; or they may have determined the train was running 35 or 40 miles and the automobile 12 or 15. *Page 910 An ordinance of the city of Houston prohibited the running of trains at that place in excess of 6 miles per hour.
D. A. Middleton, a disinterested engineer and fireman of 25 years' experience with appellant's railway system, after saying he had worked with and was familiar with the type of engine used in this instance, testified further as follows:
"It takes less than a second to apply the emergency stop, and the brakes snap on immediately, just like snapping your fingers. A train running 15 miles an hour can be stopped within 40 or 50 feet. A train running 15 or 20 miles an hour can be stopped in 60 or 75 feet."
J. W. O'Brien, another disinterested witness, and a locomotive engineer of 14 years' experience, testified to this effect:
"I have had experience with the type of engine involved in this accident ever since they came out. A train traveling 12 or 15 miles an hour could be stopped in 15 to 18 feet. The same train under the same conditions, running 18 or 20 miles an hour, could be stopped in 60 or 65 feet The same train, operated under the same conditions, going 30 miles an hour, could be stopped between 125 and 140 feet."
Middleton also testified that when an engineer sees an object in front of him and cannot stop the best thing to do is to blow the whistle and ring the bell.
The distance from Orlando's store to the center of the north railroad track was 163 feet, and the weight of the testimony is that, not only was the engine bell not rung continuously as the train approached Gregg street, as required by section 1023 of the Houston city ordinance, but its whistle, although blown for the crossing and from a few blocks to perhaps a quarter of a mile to the east of it, was never sounded at all from the time the two men left the store until after the accident.
Special Issue No. 10, as submitted by the court to the jury, was this:
"Did the fireman upon such engine discover and realize the perilous and dangerous situation, if any of the occupants of said automobile, in such time that he could, in the exercise of ordinary care, have given warning to the engineer so that the engineer in the exercise of the same degree of care, by the use of the means at hand, consistent with the safety of himself, the engine, the train, and the persons thereon could have stopped or slackened the speed of the train, or given warning of the approach of the train so as to have avoided killing the deceased? Answer `Yes' or `No' as you find the fact to be."
To this question the jury answered "Yes."
If credence be given to this evidence, it cannot be that the automobile was moving "slowly" toward the railway track, and the fireman did not discover and realize that its occupants would probably go upon it until they had practically done so To make such an assumption is to disregard entirely the reiterated testimony of the engineer that the car was going 12 or 15 miles per hour, and that his engine was then 75 feet away; the fireman himself, also, dum tacet clamat to the contrary, in his quoted statement to the engineer that he saw the two men `coming toward the track when they were about 30 feet from it, and knew from the way they were coming, the speed, that they were going to get on the track and be struck." It rather presents a case of the occupants of the automobile approaching the railroad track, oblivious of the proximity of the train, all in plain view of the onlooking fireman, who does nothing whatever to warn the engineer until it is so late that the automobile crosses over the railway track within 6 inches of being in the clear when the fatal collision takes place; a case where the travelers were in the direct view of the fireman while their car, with its unbroken speed convincing him that they would not stop, and his engine were traveling many feet, possibly several hundred, if the speed be put near the maximum shown in the testimony, before he gave the belated warning the engineer acknowledged; this, too, where the controls of the engine were in perfect working order, and an appreciable slackening of its speed or a warning blast from its whistle could have been made in less than one second. If the doctrine of discovered peril has been so whittled away in Texas as not to apply to a condition of that kind, then, indeed, would it be necessary to make out a case of murder or criminal negligence, as the court remarks in Higginbotham v. Railway, cited infra, in order to ever show a right of recovery under it.
From the fact that only the questions of discovered peril and contributory negligence are discussed, and the reversal ordered upon the jury's findings upon them alone, the inference is permissible that the majority of this court concluded that there was no other reversible error in the judgment of the trial court; at least that is the view of this member The verdict as reduced by the remittitur could not, in the circumstances, it seems to me, be said to be excessive in amount, nor was the action of the lower court in overruling the motion for new trial shown to be such an abuse of discretion as called for a revision by this court.
As this is a mere dissent from the conclusions upon which the court reversed the judgment, it is not deemed essential that the other matters be further gone into. The divergence in view leading to the dissent may perhaps at once be illustrated by quoting these declarations from the majority opinion:
"Even if the fireman saw the deceased, in the present case, moving slowly towards the track as the train approached the crossing, he had the right to assume that deceased would stop at a place of safety and not go upon the track. He certainly was not required to *Page 911 anticipate that deceased would be guilty of an act of negligence by putting himself in danger."
"In the present case, however, it is shown by the undisputed evidence that the fireman knew that the view of the occupants of the automobile was unobstructed, and that if they were looking and listening for the approaching train, as he had a right to assume they were, they would see and hear said train, and he had a right to assume, in the absence of some act other than that they were moving slowly toward the train, * * * that as reasonable human beings they would stop until the train had passed."
In support of these pronouncements, which are elsewhere in the body of the opinion in effect reiterated, are the following authorities quoted and relied upon: Pillow v. Ry. Co., 55 Tex. Civ. App. 597 119 S.W. 128; Ry Co. v McMillan, 100 Tex. 562, 102 S.W. 103; Ry. Co. v. O'Donnell,99 Tex. 636, 92 S.W. 409; Schaff v. Gooch (Tex.Civ.App.)218 S.W. 783. In much respect, the opinion is here ventured that these cases do not rule the one at bar; they did not involve the situation here obtaining, in that every one of them had to do with a pedestrian, and he was walking on or near the railway track in circumstances where the train operatives either did not see the man at all or last saw him in a place of comparative safety, while here the deceased, with unslackened speed, was actually approaching in an automobile the railroad crossing on the street he was driving upon; that is, two automatically operated machines were running at right angles on intersecting highways directly toward each other, and at close proximity. The two situations cannot, therefore, in any just or legal sense, be said to be the same. While no attempt is here made to iron out any conflicts, if such there be, between these decisions and those elsewhere cited as supporting the view of the dissentient, this indication that they were controlled and determined by essentially different facts is pointed out:
In Schaff v. Gooch the pedestrian when last seen by the railroad company's employés was between the tracks and walking approximately parallel to them. 218 S.W. 792.
In Ry. Co. v. McMillan, 100 Tex. at top of page 564, 102 S.W. 103, the evidence shows that the employés did not know that the man was in danger until they were in 200 feet of him, when under the other facts appearing, it was too late to stop the train.
In Pillow v. Ry Co., 55 Tex. Civ. App. 597, 119 S.W. 129, the fireman testified that he saw the man, whom he took to be the one who flagged the train, going along down by the side of the track on the embankment.
In H. T. C. Ry Co. v. O'Donnell, 99 Tex. 636, 92 S.W. 409, the man was deaf, a fact unknown to the train operatives, and was, when last seen by them, walking along parallel with the train.
In Ry. Co. v. Shetter, 94 Tex. 198, 59 S.W. 533, the last time the employés saw the pedestrian, they saw him stop just before stepping upon the track.
Further cases referred to with approval by the majority are T. P. Ry. Co. v. Breadow, 90 Tex. 30, 36 S.W. 410, and M., K. T. Ry. Co. v. Malone, 102 Tex. 269, 115 S.W. 1158. In the Breadow Case, the last time the employés saw the pedestrian he was walking on the main track when the engine, which afterwards hit him, was on a passing track; in the Malone Case there was no evidence that the employés saw the injured person at all.
It is apparent, therefore, that the majority, in applying here a rule resulting from a wholly dissimilar situation, assumed the very fact at issue in this case — that is, that Wagner either actually did see or should in law be held to have seen the train, thereby both ignoring the jury's contrary findings and at the same time confusing with discovered peril the wholly separate question as to whether or not Wagner was himself contributorily negligent. The unsoundness of that assumption lies in the fact that under the undisputed evidence his potential or imminent danger was then on; he was at that very moment, with the admitted knowledge of the fireman, moving steadily toward the point of collision on the railroad track at the same speed the automobile had been maintaining since it left Orlando's store going northward. Wagner was not attempting suicide, and the law will not presume that he was; it presumes the contrary. Hovey ?. Sanders (Tex.Civ.App.) 174 S.W. 1029. In addition, the jury's finding was that both he and Davis, the driver, actually exercised due care in every respect, and the evidence shows that both presumption and finding were amply justified.
The advantage was all on the side of the fireman, in that he then saw the automobile was moving toward the track, while Wagner did not see the train. It therefore must and will be assumed that had he later been warned of the near proximity of the train he would have done as any reasonable man under the circumstances, that is, stopped his automobile if he could. It is further clear from the record that he could have stopped it before reaching even the first track of the crossing, had a warning been given.
That the vice indicated inheres in the majority view throughout is further shown from their definition of discovered peril, to this effect:
"It means a discovery of one in a situation of actual danger or peril, from which it is made reasonably to appear to a person of ordinary intelligence that he either could not or would not extricate himself, or that he was in a situation such as would reasonably raise an apprehension in the mind of a person of ordinary intelligence, in the exercise of ordinary care, that he would place himself in peril."
If this means that the actual discovery of the engineman that a driver or pedestrian is approaching a point of collision with the *Page 912 engine, the potential peril thus being actually discovered, does not raise the issue of discovered peril for the determination of a jury, because the engineman may assume that, if the driver or pedestrian uses ordinary care, he will not get hurt, it is not only contrary to Hines v. Arrant (Tex.Civ.App.) 225 S.W. 767 (writ of error refused by the Supreme Court, 240 S.W. xviii), but also appears to be in direct conflict with Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 664, where Judge Greenwood said:
"In the above language, we have the express declaration that a party would not be permitted, in a case of discovered peril, to base a defense on the plaintiff's concurrent negligence, though it was operative at the time of the injury as a proximate cause thereof."
Of like effect is Trochta v. Ry. Co. (Tex.Com.App.) 218 S.W. 1038.
So, as the engineman cannot excuse himself because the injured party was himself negligent, it does not appear to me that he could do so by assuming at a frightful risk that the other will yet use ordinary care when there is no overt indication that he will do so, and when further, as a matter of common knowledge — especially to experienced railroad operatives — many things, such as absent-mindedness, preoccupation with the management of the automobile, or distraction of attention from other causes, to say nothing of possible defects in eyesight, deafness, and the like, may, and daily do, cause men who are ordinarily reasonably prudent to drive automobiles upon a railroad track in front of an on-coming train. In such situation the law will not, in my view, permit the train operatives to wait until they know the person approaching the train is in unescapable peril; it will not suffer such delay; their duty is to act if they realize that the person approaching is "about to enter a perilous situation." H. T. C. Ry. Co. v. Finn, 101 Tex. 511, 109 S.W. 918.
The idea is thus stated in Ry. Co. v. Dumas (Tex.Civ.App.)149 S.W. 547:
"To discover that a party is about to enter upon the track under such conditions as that he will be run over by the train is as much a discovery of his peril as if he was at said time actually upon the track. The operatives of the train did, in law, have actual knowledge of the peril of the deceased when they saw those in the automobile approaching the track, and it reasonably appeared to them, if such was the fact, that the occupants of the automobile would not probably stop before they reached the track, and would not pass over the same in time to avoid collision with the train. The engineer testified that he saw the automobile approaching the track when he was at sufficient distance to have stopped his train in time to avoid a collision. Whether or not he saw it under such conditions as that he was justified in believing that it would stop before entering upon the track, or that it would pass over in time to avoid collision with the train, or the contrary, were issues properly submitted to the jury under the evidence in this case."
In the language of some of the most notable opinions of this court itself on this question, speaking on the duty of trainmen in such circumstances through its present Chief Justice: "They cannot speculate upon whether or not there is actual peril. If the peril is only probable their duty arises." Higginbotham v. Ry. Co (Tex.Civ.App.) 155 S.W. 1025.
It seems to me that the conclusion is inevitable that the fireman upon this engine, as with unlawful swiftness he sped down the railroad track with the automobile directly opposite him and in plain view approaching the crossing just as he was approaching it, could not have done other than realize the probable danger to Wagner.
The rule upon this subject, with the express approval of our Supreme Court, is thus stated in Hines v. Arrant (Tex.Civ.App.) 225 S.W. 770, in reference to the duty of the engineer:
"He could not in the very nature of things actually know what was in the mind of the appellee as the latter was driving toward the crossing. It was his duty, if he discovered the appellee approaching the crossing and could reasonably infer that he would likely undertake to cross the track, to use the facilities at hand to prevent a collision, either by stopping * * * or by giving some warning of the train's approach. He had no right to wait until he was absolutely certain that the traveler was going into a place of danger before taking the proper steps to avoid injuring him."
In Ry. Co. v. Ford (Tex.Civ.App.) 237 S.W. 655, the court's pronouncement is equally plain and unmistakable.
The same rule is even more aptly stated for this court by Judge Pleasants in the Higginbotham Case, as follows:
"If the doctrine of discovered peril only applied when the operatives of a train were certain that the person injured was in peril of life and took no steps to save him when his injury could have been prevented, the necessary proof in every case in which discovered peril is the ground of recovery would show a case of murder or criminal negligence. Such proof is not necessary. * * * The authorities, when rightly construed, are one on the proposition that, in order to give rise to this new duty resting upon the discovery of peril, it is not requisite that the engineer must know that disaster is inevitable unless he himself can avert it. It is enough if he knows that the person injured was in a place of danger from which he probably could not or would not extricate himself in time."
In the case of Galveston Electric Co. v. Antonini (Tex.Civ.App.)152 S.W. 845, the same learned judge happily puts the matter this way:
"That the motorman saw the boy approaching the crossing in time to have slackened the speed *Page 913 of the car and prevented the collision is clear from the evidence. If the manner in which the boy was driving was such as to reasonably indicate that he intended to cross in front of the car, it was the motorman's duty to at once use proper care to prevent the collision. He had no right to take any chance on the boy's getting across before the car reached him, nor could he speculate on whether he would stop or turn aside before he reached the track; there being nothing in the boy's action to indicate any such intention. In such circumstances we think ordinary prudence required that the motorman should act on the reasonable appearance of danger or peril to the appellee, and not wait until the danger was manifest and the injury unavoidable."
The force of the principle these decisions exemplify, the rule of law they correctly announce, as well as its applicability here, is in no sense detracted from by the fact findings therein appearing to the effect that it was apparent to the train operatives that those approaching the railroad track would probably go upon it, for the reason that that very finding, on sufficient evidence, was made by the jury in this instance; this fireman from and throughout an admitted distance of 75 feet, and inferably from credible evidence more than twice that far, saw this automobile moving steadily toward the point of collision without slackening at all the speed it had been maintaining all the time, thereby admittedly indicating to him that it would go upon the track, and with no fact or circumstance of any sort even tending to indicate that its occupants either saw or heard the on-coming train; he knew the unlawfully rapid speed his engine was making, and as a rational human being further knew that a collision was inevitable unless one vehicle or the other stopped or turned aside; yet he "took the chance" the automobile would do this, and did nothing himself until it was too late. That his action, instead of being "within his right to so assume," as the majority hold, was a plain violation of the new or superadded duty his actual discovery laid upon him, seems clear to me, under the authorities just quoted from.
Nor is it any answer to these considerations to say there was no time to avert this disaster after the fireman made his discovery. As a matter demonstrable from the facts recited, as well as one of common sense, there was time. This engine had a whistle; it could be sounded instantly, and easily heard much further than the two converging machines were apart. The hearing of the occupants of the automobile was good; their car could either have been stopped within about 10 feet or have been accelerated from its moderate speed of from 4 to 15 miles an hour so as to have made 6 inches more — all that was required to clear the railroad track — before the engine reached it. Furthermore, while the train might possibly not have been entirely stopped short of the place of impact, no reason appears for concluding that, if the fireman, when at least 75 feet east of the crossing, had signaled the engineer on first seeing the approaching automobile, the latter could not have sufficiently slackened the speed of his train by releasing the sand upon the track under the wheels, or throwing on his brakes, to have permitted the automobile to make the one remaining half foot to safety.
To say the least of these matters, they were for the jury. The law says that "every legitimate conclusion from the facts favorable to the verdict" shall be indulged in inquiries of this kind. The jury were entitled to rely upon their common sense; they were entitled to believe as practical men that with the engine the admitted 75 feet from the crossing the death of Wagner could have been avoided either by a lessening of the speed of the train or a warning blast from the whistle. They did so believe, as their verdict reflects.
For the proper consideration of this feature it is necessary to entirely lay out of the case — as seems to me has not been done in this decision — the question as to whether or not there was any contributory negligence upon Wagner's part; even were it conceded that he was not only negligent, but foolhardy, that condition would not at all affect the question.
In cases where the injured person was admittedly negligent in his conduct it is sometimes difficult to keep that fact from having an adverse influence in the determination of the issue of discovered peril. But properly it can have no just bearing. The law will not permit even a very negligent person's being killed or injured if it can be avoided in the exercise of ordinary care by the use of any means at hand. The very negligence of the injured man always serves to place him in a helpless condition. He is to be viewed as in the midst of peril, a peril for which his own act is responsible. And then, so viewing him, the question becomes: Was it possible to have avoided his injury had those who occasioned it acted as would have ordinarily prudent men aware of the peril of a fellowman, in the use of available means?
In the Houston Case (Fort Worth Denver City Railway Co. v. Houston, 185 S.W. 919, by the Court of Civil Appeals for the Second District), the court held that with the plaintiff only 15 feet from the railway track when she changed her direction and started toward the track to cross it, and with the engine only 10 feet from her when she stepped upon the track, there still was time. This case was later decided by the Supreme Court on writ of error, but this holding of the Court of Civil Appeals was not disturbed. 111 Tex. 324, 234 S.W. 385. Likewise, upon the issue of contributory *Page 914 negligence, it seems to me the scales of evidence dip decidedly on the side of the jury's findings. It is a mistake to say that the evidence affecting this feature was the same upon the present trial as upon the former one in which this court reversed the trial court's judgment. A number of witnesses testified who had not before done so, for instance, D. A. Middleton, J. Stuart Boyles, J. W. O'Brien, C. M. Thompson, John T. Garrison, and R. L. Cole, photographs or plats of different features of the scene of the accident being for the first time introduced in connection with the testimony of several of them; others of them gave materially different and additional testimony to what they had before, among these appellant's claim agent, H. L. Davis, and its engineer on the train here involved, E. N. Williams. It is true the testimony of the two expert trainmen, Middleton and O'Brien, bore mainly up on the question of discovered peril, but it also sustained a distinct relation to that of contributory negligence.
In addition to the facts recited in the preceding discussion, a short summary of others bearing upon this issue may be made as follows:
The deceased, Wagner, was a stranger in the city of Houston, having only been there 16 days before this accident. Neither he nor his companion, the witness Davis, who drove the automobile, beyond knowing that the railroad crossing was there, were familiar with the particular conditions then existing at the scene of it, and the crossing where it occurred was an exceptionally dangerous one, other accidents having occurred there. The railroad, running east and west across Gregg street, which ran north and south, had a north track for in-coming and a south track for out-going trains, each being 5 feet wide, with a 5-foot space between them; Wagner and Davis, going north from Orlando's store, had to cross this south track before reaching the north one. As has before been indicated, while the engineer swore otherwise, a number of the witnesses testified that within their hearing or knowledge no bell was rung continuously as the train approached the crossing, nor was the whistle blown near enough to it for that to have been done during the progress of the automobile from the store to the point of collision. No special warning therefore, was given Wagner and Davis at the time or after they left Orlando's store going northward toward the railroad. Section 1023, City Ordinance of Houston, required the engine bell to be rung continuously while the cars were in motion, and section 1022 prohibited the running of the train within the city limits (as this crossing was) at a greater rate of speed than 6 miles per hour; whatever the actual speed of the train at the time, it was undisputedly and knowingly being operated in violation of this law of the city at more than twice the prescribed rate, and by reasonable conclusion from the testimony already reviewed its speed was probably several times that fast.
G. O. Davis, the driver, testified:
"As I approached the track I looked up and down the track to see if there was a train coming. I did not see any and did not hear any. I always thought my hearing was good. I do not remember anything after it struck me. My first recollection after the accident was when they were sewing up my head and knee in the hospital. I was on the left-hand side of the Ford when the train struck me — the left-hand side going north. I was on the side furthest away from the train. Mr. Wagner was sitting on my right-hand side. I was driving the Ford. I looked for a train before I got there. I did not hear anything at all before the train struck me. I suppose, to the best of my knowledge, it must have been about 10 or 15 feet from the track, or something like that, when I looked to see if the train was coming. I could not say that I knew it was a double track there. I didn't know the train went along there frequently. I didn't know how frequently it went there. The reason I didn't see the train coming there were some little houses or something of the kind that broke my sight. My reason for not seeing it was it was something that broke thesight that kept me from seeing it."
The italics are my own, indicating the positive testimony of Davis that he looked and that something did in fact obstruct his vision. Stratton and White both swore that at the time of this accident there were several houses on the east side of Gregg street between Orlando's store and the railroad right down close to the track, and the former also said there was a big barn there too.
One of the photographs in evidence, taken in connection with a prior accident to this one, shows two detached freight cars on the south railroad track close to the scene of this one. Appellant's freight yards were located just east of this crossing, and many trains and cars habitually moved backwards and forwards over it. Pipe lines were being laid for it about a block and a half east of where this collision occurred at that precise time. Wagner was sitting to the right of Davis, between him and the approaching train. There was a line of large telegraph poles with heavy rows of yardarms at the top on the right of way close to the south track, and extending eastward along the railway line as far as the eye could see; also one large pole on the east side of Gregg street and another just to the east of that, both on the south side of the first railroad track and within the line of the right of way. There was further, at a point 120 feet east of the center of Gregg street, a cattle guard extending south from this first track, and built onto it was one panel of a high board fence; then just to the west of this fence, and consequently also directly athwart the line of *Page 915 vision toward the train of Wagner and Davis when close to the railway track, was a high plank sign standing apparently several feet up over the top of the panel of the fence. The photographs in evidence featuring these actual physical conditions at the time alone convince me that the jury were well within the proper exercise of their prerogative in accepting Davis' statement that something obscured his vision when he looked for the train.
But if it could be said that these physical conditions were not shown to have been calculated to break one's vision from the point where Davis said he looked, it was still within the jury's province to reconcile them with his testimony, if that could be reasonably done; in other words, they might have believed that he looked but was mistaken as to his distance then from the track, and that he was not so near the railroad as he thought he was; there is no evidence of his being familiar with detailed conditions at the crossing; he testified without contradiction that he didn't even know there were two tracks there, and so was only giving his estimate from recollection of the general situation at the time he looked, made years after the occurrence.
But, be that as it may, under all these attending conditions and circumstances referred to, it seems to me the jury might very reasonably have concluded that some one of them did interfere with his sight at the particular time he looked, being presumably preoccupied to some extent at least with the operation of his own machine, and probably also looking ahead into one of the most dangerous railroad crossings in the city of Houston for the safety of his own movements at the same time.
While there was some confusion in the law touching the question of contributory negligence in crossing accidents such as this at the time of this court's former opinion in this cause, it is now well settled that one is not guilty of contributory negligence in approaching and driving across a railroad track in front of an on-coming train merely because he could have discovered the train in time to have prevented the collision, but failed to do so; that even his failure in fact to look or listen does not of itself constitute negligence as a matter of law, but that the question is still one for the jury, under all of the circumstances attending; Harrell et ux. v. Ry. Co. (Tex.Com.App.) 222 S.W. 221; Texas N. O. Ry. Co. v. Harrington (Tex.Com.App.) 235 S.W. 188; Trochta v. Ry. Co. (Tex.Com.App.) 218 S.W. 1038. See, also, Boyd v. Ry. Co., 101 Tex. 411,108 S.W. 814; Ry. Co. v. Fuller, 13 Tex. Civ. App. 151, 36 S.W. 319.
If, therefore, the jury has the right to say that, considering all the facts and circumstances in the case, a total failure to either look or listen or to do any other specific act in the effort to discover whether or not a train is approaching is not negligence, it follows that it may also say that a failure to look or listen at some particular point is not negligence. But if, notwithstanding what has been pointed out, it could be said that Wagner and Davis here were guilty of contributory negligence in going upon the railway track in the way they did, there would still remain as a fact issue for the jury the question of whether such negligence was the proximate cause of the injury, since the railway company was also negligent. T. N. O. Ry. Co. v. Harrington (Tex.Com.App.) 235 S.W. at page 192. That issue, too, on undoubtedly sufficient evidence, was determined adversely to appellant. Furthermore, in approaching this crossing, located as it was in a populous district inside the limits of the city, these men were not required to anticipate that appellant would negligently rush its train across the public streets in open violation of its statutory duty both to confine its speed to 6 miles per hour and to ring its bell all the while. Ry. Co. v. Holland,27 Tex. Civ. App. 397, 66 S.W. 68, 70; Davis v. Pettitt (Tex.Civ.App.)242 S.W. 786; Ry. Co. v. Gray, 65 Tex. 36; T. N. O. Ry. Co. v. Diaz (Tex.Civ.App.) 234 S.W. 925. And the evidence is undisputed that, had the train been running only the lawful 6 miles per hour, it could have been stopped short of the point of collision after the fireman saw from its speed and position that the automobile was going onto the track; how, then, can it still be said that the excessive speed of the train was not conclusively shown to have been the proximate cause of the accident?
A painstaking review of the record has convinced me that the case was fairly tried under a proper charge, and that the evidence sustained the jury's verdict; it should therefore be permitted to stand. I respectfully but earnestly dissent from the judgment of reversal.