The findings of the jury that plaintiffs in error were guilty of negligence as specified in the statement above are attacked as erroneous because not warranted by evidence before them. But we think each of said findings had evidence to support it, unless it was the finding that the failure of the employés in charge of the engine to blow the whistle and ring the bell thereof as required by law was a proximate cause of the accident resulting in the death of T. L. Morgan. Whether that one was warranted by the testimony or not need not be determined, because, if it was not, the judgment should not therefore be reversed; for actionable negligence on the part of plaintiffs in error was established by the findings that they had failed to discharge the duty the law imposed on them to keep the crossing in repair, and that the employés in charge of the engine were operating same at "an unusual and dangerous rate of speed."
The finding that the deceased was not under the "influence of intoxicants" at the time he was killed is also attacked as "without evidence to sustain it." We think there was such evidence, but if we thought, instead, *Page 282 that the testimony established the fact to be to the contrary of the finding, we would not reverse the judgment; for the fact, if it was a fact, that deceased was under the influence of intoxicants, would not as a matter of law have operated to deprive defendants in error of a right to recover damages for his death as they did. That he was under the influence of intoxicants would be a fact the jury had a right to take into consideration in determining whether he was guilty of contributory negligence or not, but it would not of itself convict deceased of such negligence. Railway Co. v. McGlamory, 89 Tex. 635, 35 S.W. 1058; Railway Co. v. Jackson, 41 Tex. Civ. App. 51, 90 S.W. 918; 29 Cyc. 534.
On the issue as to contributory negligence on the part of the deceased the jury found that he was not "reckless or careless in driving onto the crossing" as he did, and that he did not "fail to exercise care to ascertain if the train was approaching the crossing at the time he approached and undertook to cross the same." On the theory that it conclusively appeared from the testimony that the deceased, had he looked, would have seen the train moving toward the crossing as he approached it, plaintiffs in error argue that the finding that he did not fail to exercise care was a finding, in effect, that he saw the train as he approached the crossing, and therefore that the finding was contradictory of the one that deceased was not "reckless or careless in driving onto the crossing" as he did. We agree that it appeared there was no obstruction between the deceased and the train which would have been in the way of his seeing the train as he approached the crossing, and therefore that deceased must have seen the train if he exercised care to ascertain if it was approaching the crossing, but we do not think the finding was therefore contradictory of the one that he was not "reckless or careless in driving onto the crossing." It did not follow as a matter of law that deceased was guilty of contributory negligence if, seeing the train approaching, he nevertheless undertook to drive his automobile over the crossing. Railway Co. v. Starling, 16 Tex. Civ. App. 365, 41 S.W. 181; Railway Co. v. Wagley, 15 Tex. Civ. App. 308, 40 S.W. 538; Railway Co. v. Laskowski, 47 S.W. 59. Persons with reasonable minds might very well have differed as to the nature of his act when viewing it, as it should have been viewed, in connection with other circumstances testified to by witnesses. Therefore the question as to whether deceased was guilty of negligence or not was one that should have been, as it was, submitted to the jury, notwithstanding it may have conclusively appeared from the testimony that deceased saw the train moving toward the crossing as he approached same.
We have not been referred to and have not found anything in the record which indicates that the jury were influenced by any other consideration than a desire to do their duty when they found the sums they did in favor of defendants in error. Therefore, in view of the testimony showing that deceased at the time of his death was earning $2,500 to $3,000 a year and had a life expectancy of more than 26 years, the contention that the judgment is excessive will be overruled.
Assignments presenting other objections to the judgment than those disposed of by what has been said are also overruled, because we think they are without merit when considered with reference to the record.