The widow and the two minor children of Julius Kuehn sued the appellant and obtained judgment for negligently killing the said Julius.
It is elementary, and recognized in the many decisions of this court in like cases, that, to recover in such case, it devolves upon the plaintiffs to show that the death was caused by the defendant; that in the collision causing the death the deceased was using proper care—that is, that he was not himself guilty of negligence directly contributing to the collision; and that the defendant company was guilty of negligence or want of the proper care called for under the circumstances.
Regarding the testimony as sufficient in this case to show want of care, or negligence, on the part of the defendant, it remains to determine whether the deceased so acted in the matter as to allow the plaintiffs to recover for the negligence of the defendant. It is a natural presumption that a man in his right mind will not voluntarily and without motive encounter a threatening danger. Where the attendant circumstances show facts from which a jury may deduce the conclusion of want of negligence on the part of the deceased, this court will accord to the verdict a conclusive effect. The amount of testimony is for the jury, and if exercising their judgment upon facts in evidence, their action will rarely be set aside.
In this case the testimony shows that deceased was going home from the town of New Braunfels, near which he lived, by an old and much traveled public road with which he was well acquainted. The track of the defendant’s railroad crossed the road he was traveling nearly at right angles. The track at the crossing, and for several hundred yards west of it, was apon an embankment variously estimated at from three to seven feet above the level. That to the right of deceased, and for a distance of three hundred yards from the crossing upon *586the railroad track, there was an unobstructed view from the road on which he was traveling. Some hackberry trees grew along a fence north of the track and outside of the right of way, but these, being bare of leaves, made no material obstruction to the sight. The testimony is conflicting whether the bell was rung or the whistle sounded at the approach of of the train to the crossing, but it is in evidence that deceased had stated to witness Smith that “he saw the train when it was about forty steps off, and thought he could drive across it before it would reach him, and whipped up his horses for that purpose.” To witness Hortman he stated that “he had seen the train while he was stopping in the lane.” Witness Bruestedt, for the plaintiff, had testified to meeting the deceased in the lane about fifty steps from the track, at which point, it seems, some halt was made by the deceased. The train was provided with Westinghouse automatic air brakes, the best known to the witnesses. The engineer testified that he “could not have stopped sooner than he did after seeing the intention of the deceased to cross the track.” The duty to halt on the part of those managing the train did not arise until it became manifest to them that the deceased was intending to go upon the track in front of the train.
In the charge of the court was the following clause: “It is negligence in a railroad company to permit or suffer brush or tall weeds to grow upon its right of way so as to materially obstruct the view of approaching trains by persons about to cross its track; and if the jury believe from the evidence that the defendant permitted and suffered brush and tall weeds, as alleged in plaintiff’s petition, to grow upon its right of way so as to materially obstruct the view of approaching trains by persons about to cross the railroad on the crossing in question, and that but for such obstructions the injury would not have happened, then the defendant is liable in this case, unless you believe from the evidence that the deceased’s own negligence directly contributed to the injury.” After a careful study of the statement of facts, we find no testimony authorizing this issue. The defendant asked a charge correcting the error, and saved the exception. The trial judge, in refusing the correction, remarks that, in his opinion, there was some such testimony. It may be that the statement of facts omitted it, but we are governed by the record as before us. It is shown that the hackberry trees spoken of by the witnesses grew some ten *587to twenty feet outside of the right of way; that at the time, twenty-seventh of February, the trees were bare of leaves, and in fact were no obstruction. It was shown that the deceased was under the influence of liquor, and in approaching the crossing acted in a reckless manner. Besides this, his actual knowledge of the presence of the approaching train rendered all questions as to means of knowledge of it of no importance. To give the charge set out above was error, and the verdict was against the testimony upon the issue of contributory negligence. We can but hold that the testimony negatives proper care and shows culpable negligence on part of deceased, without which he would not have been injured.
Opinion delivered May 1, 1888.We can notice but few of the many other assignments of error. The petition was good. That deceased had instituted suit for damages, which suit was pending at his death is no. bar to the action of the plaintiffs. That pending the suit the widow married again does not preclude her right of action. The fact doubtless affected the verdict, as it gave her less damages than were given to each of the children. That the husband of the mother acted as next friend of the minor children, was not error. He was not interested in the suit by them.
Since this appeal was taken this cotirt has held in 68 Texas, 59, Railway v. Morris & Crawford, that the defendant is not released from his liability by its lease of the road to another company.
The charge of the court is exceptionally full and fair to both parties, with the exception of the paragraph above given. The court properly charged that the neglect of statutory duties was negligence as matter of law. Having given a clear exposition of the law applicable to the facts, it was his duty to refuse charges asked upon the subjects covered by the general charge. The defendant does not have the right to have the court charge upon the effect of isolated facts as negligence or not. The jury determine upon the circumstances of the situation, when not a matter of law, the fact of negligence under the charge as to the duty or degree of care imposed upon the parties arising from the entire facts, and upon exercising their judgment upon them.
For the error above stated, the judgment below is reversed and the cause remanded.
Reversed and remanded.