This suit was brought by appellee to recover damage for the death of his son, a minor.
The cause was once before before this court, when the judgment was reversed on account of errors in the charge. 73 Texas, 324.
It was then decided that as the law stood at the time of the death of plaintiff's son the defendant was liable only if the injury was caused by the gross negligence of its servants.
Upon the trial from which the present appeal is taken the court fully explained the degrees of negligence, and charged the jury that the plaintiff could not recover unless the evidence showed that the injury to his son was caused by the gross negligence of the defendant's servants.
But a subsequent part of the court'smharge contains the following langauge: “If at the time of the injury to the deceased which resulted in his death he from fear or any other cause jumped or ran upon the track of defendant, after having before left it, in front of a moving engine and train of defendant, and in such close proximity to the train as that the servants of the company in charge of such train by the exercise of ordinary care could not have prevented the injury, then the defendant would not be liable in damages for the death of the deceased; and should you find and believe from the evidence that the child, or deceased, went upon the track under such state of surroundings and in such way, then you should find for the defendant.”
This charge is complained of as being misleading as to the degree of care incumbent upon the defendant.
The charge seems to us to have been well calculated to confuse and mislead the jury and to destroy the effect of the instructions preceding it.
The judgment is reversed and the cause is remanded.
Reversed and remanded.