I think the judgment should be reversed on account of the charge. The court had no right to assume as a fact that the track on which the cars were standing did not belong to defendant, for of such a fact the court could not have judicial knowledge; and from the facts proved, the jury might have inferred that the track and standing cars belonged to defendant.
The cars standing on the sidetrack, whether belonging to defendant or not, was a fact to which the jury were entitled to look in determining whether defendant used due care in approaching with its train a crossing thus obscured; and if the track or cars belonged to defendant, the placing of them so near the crossing was a fact to which the jury were entitled to look to determine whether negligence on part of defendant did not exist. The position of the cars on the sidetrack was also a matter to which the jury were entitled to look in determining whether there was contributory negligence on the part of the child; and in my opinion the charge of the court was calculated to induce the jury to believe that they were not entitled to consider the standing cars for any purpose.
A motion for rehearing was refused at the Austin Term. *Page 232