within that distance. The assignments of error relied on are as follows: "First, The verdict and judgment should have been for defendant, because the evidence is not sufficient in law to entitle the plaintiffs to recover; the undisputed facts showing that there was no negligence of defendant or its servants. Second, The verdict and judgment should have been for defendant, because the evidence is not sufficient in law to entitle plaintiffs to recover; the undisputed facts showing that Ryon was grossly negligent, and careless of his own safety, in going on, or standing or walking upon, the railroad track away from a station or public crossing, and where said track was fenced, without using his senses, or any precaution whatever, to preserve or protect himself in such dangerous position. Third, The court erred in giving the following charge asked by plaintiff's attorney: 'If you believe from the evidence in this case that in Fort Bend County, on or about Sept. 14, 1885, the defendant railway company's locomotive or engine, drawing defendant's train of cars, ran against and personally injured John B. Ryon, and that such personal injury caused said Ryon's death, and that such injury was caused by the gross negligence or carelessness of the servant or servants of defendant operating said train and locomotive (or engine), and that plaintiff is the widow of said Ryon, and the mother of his children, as alleged in her petition, then you will find a verdict for the plaintiff,' - because said charge submits to the jury an issue not raised by the evidence, there being no evidence in the case of gross negligence or carelessness of defendant or its servants. Fourth, The court erred in giving the following charge to the jury, asked by plaintiff's attorney: 'If you believe from the evidence that said Ryon, by his own negligence, contributed to his injury, you will find for the defendant; but, in considering the question of whether Ryon contributed to his own injury or not, if you believe that Ryon was guilty of negligence in going upon the track of defendant, but that this was the remote and not the proximate cause of his injury, and if you further believe from the evidence that the proximate cause of Ryon's injury was, that the defendant's servants, after it became known to them that Ryon was on the track, or after they might have known that he was there by the use of a reasonable watchfulness, and was in danger of being injured, did not use any care, or that they used such little care as to justify the belief that they were indifferent as to whether Ryon was hurt or not, to prevent the injury to Ryon, you will find for the plaintiff : that is to say, that, in order to charge the defendant with liability for the injury done to Ryon while Ryon was on defendant's track at a point between stations and not at a public crossing, you must believe from the evidence that defendant's employees in charge

of the engine and train had knowledge of, or by use of the slightest watchfulness might have comprehended, the situation, and have avoided the danger by the ordinary use of the means in their power, and that they failed to use those means to prevent the inflicting of the injury on Ryon,' because the question of remote or proximate cause does not arise out of the facts in evidence, and because it appears by the evidence, without dispute, that Ryon's presence on the track was not known to defendant's servants, and therefore the question whether they were indifferent as to whether Ryon was hurt or not, does not arise in the case, and because said charge puts the whole burden of care and responsibility for the preservation and safety of said Ryon upon defendant, without reference to the duty resting upon him to preserve and protect himself. Fifth, The court erred in giving the following charge, asked by plaintiff's attorney: Persons operating a railroad train, seeing a man on their track in the direction their train is going, have a right to presume that he will step off in time to avoid a collision; but even though such person be at the time a trespasser on the track, he is entitled to have some warning given him by the railway employees, — that is, such warning as would reasonably alarm his fears, and cause him to leave the track; and if those operating the train so see a person, and fail to give such reasonable warning, the railroad company would be liable for the injury, if any, inflicted on such person, because it appears by the evidence, without dispute, that defendant or its servants did not know that Ryon was on the track, and because said charge, even as an abstract proposition, is not a correct statement of the law. Sixth, The court erred in refusing the following charge asked by defendant: 'Between stations and public crossings, a railroad track belongs exclusively to the railroad company, and persons who ride or walk thereon are trespassers, and they do so subject to the risks incident to so hazardous an undertaking; and, if injured by a train of the company, there is no liability unless the injury is wilful.' Seventh, The court erred in refusing the following charge asked by defendant: 'If, from the evidence in this case, you believe that John Ryon, the party who is alleged to have been killed by defendant's train, was upon the track of defendant at a point between stations and public crossings, then said Ryon was a trespasser; and in order to render defendant liable in damages for his injury or death, it must be shown that defend. ant's servants, operating the train by which plaintiff alleges the said Ryon was killed, had knowledge of the peril in which said Ryon had placed himself, or the equivalent of such knowledge, at least long enough before the injury inflicted to have enabled them to form an intelligent opinion as to how the injury might 34 A. & E. R. Cas.-3.

be avoided, and to apply the remedy.' Tenth, All foregoing matters were made grounds of a motion for a new trial, as well as the further ground that the verdict and judgment were contrary to the law and evidence, and without evidence to support them, and the court erred in not granting a new trial."

E. P. Hill for appellant.

Pearson & McCamly for appellees.

Recovery notwithstanding contributory negligence.

MALTBIE, J.-The courts hold, almost without a dissent, that a person guilty of negligence contributing to his injury may recover, notwithstanding his own negligence, if the defendant, after discovering plaintiff's danger, fails to use ordinary care to avoid injuring him. But in general, where the defendant owes the plaintiff no duty, and is not aware of his danger, though the discovery might have been made by the exercise of ordinary prudence on the part of defendant, no recovery can be had. In Sympkins's case, 58 Tex. 615, it was held that if, after Sympkins went on the track of defendant, he was stricken down in a fit, and was thus run over by the train, that his negligence in going onto the track was only a remote cause of his injury; and that a providential occurrence intervening broke the causal connection between the original act of negligence and the injury, and that therefore the defendant would be liable for the injury if its servants failed to use ordinary diligence to discover the plaintiff while lying on the track in a helpless condition. In the case of Railway Co. v. O'Donnell, 58 Tex. 27; s. c., 10 Am. & Eng. R. R. Cas. 212, and other cases of infant trespassers, negligence was not imputed, on account of the want of discretion in such persons, and the roads were held liable on account of failing to use ordinary diligence to discover the person on its track, and prevent his injury; but no case in Texas has ever held a railroad company liable for failing to discover a sane man who was on its track without right, and under circumstances that rendered the act of being on it negligence contributing proximately to the injury. Negligence is, as a general rule, a question of fact, and often depends upon a variety of facts and circumstances. A person who trespasses upon the lands of another is not necessarily guilty of negligence. Marble v. Ross, 124 Mass. 44. Negligence is the opposite of prudence, and acts habitually done by prudent persons cannot be logically characterized as negligent. It is a fact widely known that prudent persons, as occasion may require, cross railroad tracks at places other than public crossings; and the mere fact that one may cross at such place would not make it negligent, though were he to do so when trains were approaching, or without looking and listening, it

would doubtless be an act of negligence. The Supreme Court of Wisconsin, in a case where a girl seven years old was injured in crossing a railroad track not at a public crossing, after observing that negligence is generally a question of fact, use this language, which meets with our approval: "The plaintiff also offered to prove, in effect, that persons living near the track west of the depot, and other people, men and women and children, had, for some years immediately before the accident, been in the habit of pacing back and forth — up and down on the same pathway and in the same direction where the little girl went at the time she was hurt, and that they had been so accustomed to pass daily and hourly for several years, all of which was excluded. This excluded evidence," the court say, "tended to prove an implied consent or license on the part of defendant that persons might pass on foot along the switch-path, and across the side track, to the public street; and the mere fact that other children had been ordered off the track would not conclusively prove that no such consent or license had been given. If such custom existed, and men, women, and children were daily and hourly passing over the same pathway, it certainly had an important bearing, not only on the question of whether Rosa was guilty of contributory negligence, but whether defendant was exercising ordinary care at the time." Townley v. Railway Co., 4 Am. & Eng. R. R. Cas. 567.

John Ryon, the husband and father of appellees, died of injuries inflicted by appellant's engine while he was standing on the end of a cross-tie, looking at his feet, and scraping Facts stated.

the mud off of them. The accident occurred in Fort Bend County, on the east side of the Brazos River, 550 yards from the railroad bridge, and 400 yards from where the railroad crosses the public road at Worthington's. From the Brazos-river bridge to where Ryon was killed, the ground is open, level, and unobstructed, and a person could be easily seen at that point from the bridge; and an engine at the bridge could also have been plainly seen from that point. Ryon was a farmer residing at Richmond, on the west side of the river; had been at work that day in a field south of the place where he was killed, and was then on his way home. It had been raining, and the road to Richmond was muddy and rather circuitous. There was a nearer and dryer route over a foot-path along the grade, which Ryon had been travelling, and which crossed the track at the place where he stopped to clean the mud off of his shoes. The train was behind time; was running at from 22 to 25 miles . an hour, which was faster than usual. No whistle was blown or bell rung on this occasion. The time from the bridge to where the accident occurred, at 25 miles an hour, was about 35 seconds.

Ryon was partially deaf; could not hear the rumbling of the train, but could hear a whistle or the ringing of a bell. His route was through cultivated fields, and there were several houses between where he was hurt and Richmond. The track along where the path ran was fenced, but a plank had been knocked off, and persons passed through the opening when travelling the path. No one saw Ryon when he was struck by the engine; but he was seen walking along, a very short while before, by the side of the track. It was in evidence that the fireman, engineer, and conductor were engaged at their several duties from the time the train arrived at the bridge until after the accident occurred, and that none of them discovered Ryon until after he was injured, for the reason that none of them looked ahead. Upon this state of facts, the court, among other things, charged the jury as follows: "If you believe from the evidence that said Ryon, by his own negligence, contributed to his injury, you will find for the defendant; but, in considering the question whether Ryon contributed to his own injury or not, if you believe that Ryon was guilty of negligence in going upon the track of defendant, but that this was the remote but not the proximate cause of his injury, and if you further believe from the evidence that the proximate cause of Ryon's injury was that defendant's servants, after it became known to them that Ryon was on the track, or after they might have known he was there by reasonable watchfulness, and was in danger of being injured, did not use any care, or that they used such little care as to justify the belief that they were indifferent whether Ryon was hurt or not, to prevent the injury to Ryon, you will find for the plaintiffs." We think that in so far as this charge asserts the proposition, that, if Ryon was guilty of negligence in going onto defendant's track, the defendant would be answerable in damages for failure to discover that he was on it, there was error. For if Ryon was negligent in going upon the track, nothing having intervened from that time until the accident occurred to relieve the original act of its culpability, as in the Sympkins case, his negligence contributed directly to his injury, and defendant did not owe him the duty of keeping a lookout for his safety, although it would have been liable if it had, in fact, discovered Ryon on its track, and had failed to use reasonable diligence to prevent the train from running over him. There was no evidence at all that defendant's servants ever saw Ryon on the track, and the submission of such theory to the jury was, for that reason, an error. If Ryon was guilty of negli gence in going upon the track, and upon this issue we express no opinion, appellees cannot recover upon the facts of this case. We are of the opinion that for the errors in the charge the judgment should be reversed, and the cause remanded.