On November 16, 1951, W. A. Nichols, plaintiff below, was an employee of MK-T Railroad Company of Texas, hereinafter referred to as “Katy”, and was working as a roadmaster which necessitated that he operate a small railroad motor car upon and along the railroad tracks which ran in an easterly-westerly direction between Smithville, Texas, and Houston, Texas. In the early morning of said date, as Nichols started to cross an intersection of said railroad track on a road known as “Old Plum Road” which road runs in a northerly-southerly direction across said railroad track, while operating said railroad motor car he collided with a truck belonging to Red Arrow Freight Lines, hereinafter referred to as “Red Arrow”. Nichols was traveling in an easterly di*742rection and the Red Arrow truck was traveling in a northerly direction. Nichols sustained many serious personal injuries, and filed a single suit against the Katy under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. and against Red Arrow in a common law action.
He alleged that at the time and on the occasion in question he was acting in the course and scope of his employment for the Katy and that the Katy was negligent in furnishing him a motor car for use in his work without having installed therein or thereon a sufficient warning or signaling device sufficient to warn vehicular traffic of the approach of said railroad motor car.
Nichols alleged a number of acts of negligence by the driver of the truck belonging to Red Arrow, one of which was failure to keep a proper lookout for the approach of railroad vehicles on the railroad track.
The Katy answered by special exceptions (but the record does not reveal any action upon them) and as special defenses alleged specific acts of negligence on the part of Nichols, one of which was that an employee to whom such railroad car had been assigned was responsible for the care and condition of such cars and if, for any reason, such car was considered unsafe by the operator, that it must not be used. Further, that if the car was unsafe for any reason, which the Katy denied, such fact was known to the plaintiff, and if the collision was the result of the use of the car which was not safe to be used, then the act of the plaintiff in using such unsafe car was a violation of a mandatory company rule of the Katy.
Trial was to a jury which found, et cete-ra, that the failure of the Katy to equip the motor car in question with a signaling device suitable for warning a motorist approaching the crossing at the time and on the occasion in question was not negligence; that Nichols operated the motor car onto the crossing on the occasion in question when he considered it to be equipped with an unsafe signaling device, that such act was negligence and a proximate cause of the collision; (the evidence showed that the car operated by Nichols was equipped with a small beep-type horn for use in warning section hands of the approach of said car, but was not equipped with a suitable signaling device to warn other vehicles) ; that Nichols was guilty of negligence in operating the motor car in question with the signaling device then on said car and that such negligence was a proximate cause of the collision; and further found that Nichols, on the occasion in question, as he approached the crossing in question, failed to give such warning of his approach to vehicular traffic on “Old Plum Road” as would have been given by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, that such act was negligence and a proximate cause of the collision. The jury found that Nichols sustained damages in the sum of $39,600 and that his negligence attributable to such damage was 72%. Judgment was rendered that Nichols take nothing against Katy or Red Arrow and Nichols appealed. He brings forward three points of error.
By Point 1, appellant complains of the action of the trial court in entering judgment in favor of the Katy and contends that the jury verdict as between Nichols and the Katy is in irreconcilable conflict. As hereinabove pointed out, the jury found that the Katy was not negligent in failing to equip the motor car with a suitable signaling device, and that Nichols was negligent in operating the motor car without a suitable signaling device and that such act on the part of appellant was a proximate cause of the collision. We are unable to reconcile the findings. We are unable to see how Nichols, the servant, could be guilty of negligence in operating the motor car furnished to him by Katy, the master, in the same condition in which said car was furnished to him and yet, Katy, the master, not be guilty of negligence in furnishing him an unsafe vehicle to operate. The irreconcilable conflict in the findings of the *743jury is too apparent in the face of the record, from the findings of the jury herein-above stated, to necessitate further discussion. Phillips v. Texas & Pacific Ry. Co., Tex.Civ.App., 223 S.W.2d 258, wr. ref. N. R.E., and authorities cited therein.
By Point 2, Nichols complains of the action of the trial court in refusing certain cross-examination of an alleged expert witness of the Katy. This point relates to the right of interrogation of a witness as to the contents of a railway engineering and maintenance encyclopedia. The original of this book has been forwarded to this Court to use in disposing of this point. Since we have concluded that the jury verdict is in irreconcilable conflict, which necessitates that this case be reversed and remanded, a discussion of this point is unnecessary. But, we doubt that the book sought to be interrogated about had been properly identified or its use sufficiently shown, under the state of this record, to show error. The point is overruled.
By Point 3, appellant complains of the action of the trial court in entering judgment against appellant on grounds of contributory negligence in keeping with certain findings of such negligence on the part of the jury because there was no evidence, or insufficient evidence, to support such findings of contributory negligence by appellant. With this contention we are inclined to agree. The evidence shows that appellant was bereft of all memory of the collision. There was not another eye-witness to the accident, except the driver of the truck of Red Arrow who testified that he did not see the motor car being operated by appellant until the two vehicles collided. Under such state of the record, there is a presumption of due care on the part of appellant and this presumption must prevail unless other evidence raises the issues of contributory negligence, and the burden of bringing forth the evidence of contributory negligence to rebut the presumption was on the defendants. Little Rock Furniture Mfg. Co. v. Dunn, Tex.Civ.App., 218 S.W. 2d 527, affirmed 148 Tex. 197, 222 S.W.2d 985; Koock v. Goodnight, Tex.Civ.App., 71 S.W.2d 927, wr. ref.; Fort Worth & D. C. Ry. Co. v. Longino, 54 Tex.Civ.App. 87, 118 S.W. 198, affirmed 103 Tex. 250, 126 S.W. 8; J. M. Guffey Petroleum Co. v. Dinwiddie, Tex.Civ.App., 168 S.W. 439, no writ history, and Louisiana & Arkansas R. Co. v. Pruitt, Tex.Civ.App., 298 S.W.2d 608.
The jury convicted the operator of the Red Arrow truck of eight separate acts of negligence, and we think the evidence is sufficient to support a judgment for damages, at common law, against Red Arrow. We think a very similar situation exists to that reported in Muse v. McWilliams, Tex. Civ.App., 295 S.W.2d 680. In that case the driver of the vehicle admitted that he drove onto a state highway in an intersection without knowing of the presence of an approaching pick-up truck until he heard the screeching of the brakes. See also the cases cited therein. Point 3 is sustained.
For the errors pointed out, the judgment of the trial court is reversed and the cause is remanded.