Appellant earnestly insists that we were in error in holding that the record justified an implied finding by the trial court that the truck driver Sammie Garrett knowingly and deliberately drove the truck and trailer in front of the approaching train. Our statement that 'the surrounding facts warrant an inference that the driver of the truck had notice of the approach of the train to the crossing' probably warrants the asserted holding. In view of the truck driver's testimony by deposition, which was introduced by appellee, that the first time he saw the train was when his cab was on the track, at which time it was approximately a mile away and that he did not hear the whistle blowing, we have concluded that no implied finding that the driver of the truck knowingly and deliberately drove the truck and trailer on the track in front of the approaching train is justified. Such implied finding is not necessary to affirm our conclusion that the evidence was sufficient to sustain the implied finding of the trial court that a trespass was committed in Midland County as to D. I. Nichols and as to the T. P. Since Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645, 646 'Wrongful acts willfully or negligently committed' have been held to constitute a trespass within the purview of Sec. 9, Art. 1995, R.C.S. (Emphasis ours.) Chiles v. Coswick, Tex.Sup., 225 S.W.2d 411. The evidence unquestionably warrants the implied finding that the truck driver negligently drove the truck and *Page 322 trailer on the track in front of the approaching train. This is all that is necessary to constitute a trespass.
Appellants' motion for rehearing is overruled.