As to the fifth assignment, appellant insists that it was material error not to give the following charge: "You are instructed that a railway company has the right to run engines or trains over its road at such times as it chooses, and the running of a train *Page 295 or an engine out of schedule time, or as a wild engine, is not of itself an act of negligence." If the charge had not contained the expression "or as a wild engine," which is indefinite and calculated to mislead, the charge undoubtedly embodied a correct principle of law, and should have been given. McDonald v. Railway, 86 Tex. 9. As prepared, it was rightly refused. As a statement of a proposition of law (eliminating the above expression), we fail to see wherein it was not substantially given in the statement in the charge: "Railroad companies have the right to run their trains over their roads at any time, and at any rate of speed they desire, except in incorporated cities and towns, but the law requires them to use reasonable care and precaution to prevent injury to persons who may be crossing the track."
According to plaintiff's testimony, he did look as he approached the crossing eastward, which was open, and westward, which was obstructed, so far as he was able to do. According to his statement, negligence on his part was not made apparent, as is contended by appellant in this motion. And contrary to the view of appellant's counsel, it has been decided in this State that it is not a duty devolving by law on plaintiff to "look and listen" before crossing the track. Railway v. Neff, 87 Tex. 308 [87 Tex. 308]. Hence, we think that the burden of showing the want of contributory negligence was not upon the plaintiff.
As we have stated in the opinion delivered, the charge mentioned in the sixth assignment was a proper one. But the question is: Was any injury done to defendant by not giving this charge, in view of what was given in charge, and the verdict thereon? Upon the charge relating to the effect of plaintiff's negligence, which was unquestionably correct, the verdict was that he had been free from contributory negligence. The evidence is such as would show that the accident could have been avoided by reasonable care exercised by one party or the other. The jury, under correct instructions, found that plaintiff observed proper care in the premises, and it seems to us clear from this finding that if defendant was guilty of negligence causing the injury, it must be liable, as such act would be the responsible cause thereof, and it could not have made any difference in the result if the charge had stated that the injury should be directly attributable to such negligence.
The motion is overruled.
Overruled.
Writ of error refused. *Page 296