This appeal is by writ of error, but the parties will be referred to as appellant, Texas & New Orleans Railroad Company, and appellee, Tulu Beard. The action was by appellee against appellant for damages for personal injuries, caused by a collision of a Ford car in which she and two boys were riding with one of appellant’s freight trains, at its Fourth street crossing in Beaumont. Her injuries were of a most serious nature, for which the jury allowed $1,000, with $500 additional for doctor bills, etc. The following were the only issues of negligence submitted by the court’s charge, answered as indicated:
“Question No. 2
“Do you find from a preponderance of the evidence that the defendant, its agents, servants and employes, on the night of September 9, 1934, failed to place and maintain a flagman, light, bell or other warning in the vicinity of its railroad crossing on Fourth Street in the city of Beaumont, and far enough south of said crossing so that a person riding in an automobile, traveling north toward said crossing while using ordinary care in riding in said automobile and keeping a proper lookout for her own safety, could have seen such flagman, light, bell or other warning, if same had been so placed and maintained, in time to have avoided said automobile striking a train of cars across and upon said crossing?” Answer: “Yes.”
“Question No. 3
“Do you find from a preponderance of the evidence that such failure (if any) to so place and maintain such flagman, light, bell or other warning constitute negligence on the part of the defendant, its agents, servants and employes, according to the definition of negligence given you in this charge ?” Answer: “Yes.”
' “Question No. 4
“Do you find from a preponderance of the evidence that such negligence (if any) was the proximate cause (as that term has been explained to you) of the injuries (if any) sustained by plaintiff?” Answer: “Yes.”
The appeal is from the judgment of the lower court entered in appellee’s favor on the jury’s verdict. On oral argument appellant waived all assignments of error except the assignment together with its proposition that, on the undisputed testimony, the judgment of the lower court should be reversed, with rendition of judgment in its favor.
On that proposition the following are the undisputed facts: Appellant’s railroad crosses Fourth street at right angles, on the western side of the city of Beaumont. This is a paved street and is perfectly straight for several hundred feet on both sides of the railroad track, with nothing whatever to obstruct the view of the crossing. At the crossing the track is elevated 3 feet above the general street level. Beginning back a proper distance, the street is built up to a level with the railroad track at the crossing.
The collision occurred about 12:25 a. m. on the 9th day of September, 1934. Appellant’s freight train, 94 cars long, was slowly passing over the Fourth street crossing, moving 3 or 4 miles per hour, a speed so slow that, without stopping, it took at least 30 minutes to clear the crossing. The automobile in which appellee was riding ran head on into the twenty-eighth boxcar back from the engine. As a result of the collision she suffered the serious and permanent injuries sued for.
*1082Appellant pleaded many issues of contributory negligence against appellee, but they were all found by the jury in her favor, and no complaint is before us against these findings; hence it would serve no useful purpose to detail the circumstances immediately preceding the collision.
Under appellant’s proposition, we are concerned with the evidence only to the extent of determining whether or not there was raised against it any issue of negligence together with the issue of proximate cause.
It was without dispute that appellant had no flagman, light, bell, or other warning, except the statutory sign “Railroad Crossing,” where its track crosses Fourth street, or in the “vicinity” of its track, as found by the jury; in other words, there was no controversy on the issues submitted by question No. 2. But the evidence was insufficient to raise the issue of negligence submitted by question No. 3 and the issue of proximate cause submitted by question No. 4.
Appellant’s common-law duty to maintain a “light, bell or other warning” at the Fourth street crossing was measured by the following proposition of law (52 C.J. 201, § 1790) : “A railroad company is ordinarily not negligent in failing to maintain an automatic alarm, in the absence of statutory requirement, when the crossing is not more than ordinarily hazardous.”
The common-law duty to maintain a flagman at that crossing was measured by the following proposition (52 C.J. 203, 204, § 1792) : “Before a jury,will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous, as, for instance, that it is in a thickly populated town or city, that the view of the track is obstructed either by the company itself, or by other objects proper in themselves, or by the configuration of the land, or that the crossing is one which, for any reason, a reasonably prudent person in the exercise of ordinary care could not use with safety, that the crossing is a much traveled one and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of bustle and confusion incident to railroad or other business, or by reason of some other such cause.”
The testimony on these issues went no further than to show a paved street crossed by appellant’s track at right angles, with the track slightly elevated, the street extending straight several hundred feet on both sides of the track, with the crossing in no way obscured. There was no testimony that this street was in a “settled” section of the city; nor that it was much-traveled; nor was there any showing that the crossing was extradangerous or more than ordinarily hazardous. On this statement the verdict of the jury convicting appellant of negligence was wholly without support.
On authority of T. & N. O. Ry. Co. v. Stratton (Tex.Civ.App.) 74 S.W.(2d) 741, and Wichita Valley Ry. Co. v. Fite (Tex.Civ.App.) 78 S.W.(2d) 714, we find nothing. in the record to support the finding on, the issue of proximate cause. There was-no pleading or proof that appellant was under the duty to maintain two flagmen at this crossing, one on each side of its track; if only one flagman was required, there-was neither pleading nor proof that he-should have been on appellee’s side of the track; the same criticism must be made against the failure to maintain bells, lights,, or other warning device. There is nothing, in the record to raise the issue that, since appellee and her companions did not seethe train which occupied the railroad crossing in time to avoid the accident, a flagman- or any other warning ■ device would have given them notice of their danger in time-to avoid the collision.
Counsel for appellee knew the character of proof required to invoke against the railroad company the common-law duty to maintain a flagman, bell, light, or other warning device at a railroad crossing. As these able lawyers offered no testimony whatever on that issue — that the crossing; was extrahazardous or more than ordinarily dangerous — there is no ground for a reasonable presumption on our part that they could offer such testimony on another trial.
Appellee pleaded other acts of negligence against appellant which were not submitted to the jury, nor was their submission requested, for the obvious reason that they were not raised by the testimony.
She.suggests in her brief that the elevation of the track, the distance between the track, and the bottom of the freight car, gave the illusion of an open way; that one driving towards the crossing could see under the freight car, down the street on the other side. This circumstance was not an affirmative act of negligence against appellant, but was available to appellee on *1083her defense to the issue of contributory negligence, which, as stated above, was found by the jury in her favor. These physical facts, if available on the issue that the Fourth street crossing was extra-hazardous, cannot avail appellee on the issue of proximate cause, for the reason that no one in the car was deceived in any way or given a false sense of security in any way, as they drove towards Fourth street crossing, by these circumstances.
When appellee rested her testimony, appellant moved for an instructed verdict, which was overruled. Thereupon it offered its testimony. After all the testimony was in, appellant moved a second time for an instructed verdict, which was overruled, to which ruling of the court it duly excepted, whereupon the case was sent to the jury, the special issues answered, the verdict received, and the jury discharged. Appellant did not make a motion for judgment non obstante veredicto. On this statement appellee advances the proposition that appellant is estopped now to insist that the verdict of the jury is without support in the evidence, and is barred of the right to ask for a reversal and rendition. This contention is overruled. Appellant was not required to move for a verdict non obstante veredicto in order to preserve its exception to the action of the court in refusing to instruct a verdict in its behalf.
The judgment of the lower court is reversed, and judgment here rendered in favor of appellant.