author: TALBOT, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. DOUTHIT et al.
    (No. 8027.)

    (Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1918.
    Rehearing Denied Jan. 18, 1919.)
    1. Trial <©=>420 — Instructed Verdict — Waiver.
    Where defendant’s motion for an instructed verdict in its favor, made after plaintiffs had closed their evidence in chief, was overruled, and defendant then proceeded to introduce testimony, all rights to complaint of the court’s failure to grant the motion were waived.
    2. Railroads <©=5369(3) — Licensees — Care Required.
    A railroad owes a mere licensee upon its tracks the duty to exercise ordinary care to avoid injuring him, including the duty to keep a proper lookout to discover his presence on the track and to give warning of the approach of a train.
    3. Railroads <©=*356(2) — Persons Using Roadbed — Habitual Use — Duty of Railroad.
    If the portion of a roadbed of a railway company has been commonly and habitually used for a long time by the public as a footpath, with the knowledge and acquiescence of the company, it is considered as having licensed the public to use such portion of its roadbed for that purpose.
    4. Railroads <©=>398(1) — Habitual Use of Roadbed — Acquiescence—Sufficiency of Evidence.
    In an action for death on defendant’s track, evidence held sufficient to sustain a finding that the company had knowingly permitted the public to use its roadbed at the point where the accident occurred.
    5. Railroads <©=>398(2) — Persons on Track —Habitual Use of Roadbed — Negligence —Sufficiency of Evidence.
    In action for death on railroad track at a point habitually used by the public, evidence held sufficient to sustain a finding that the servants operating the train failed to keep a proper' lookout to discover the deceased. .
    6. Railroads <©=>398(2) — Persons on Track —Death at Point Habitually Used by Public — Proximate .Cause.
    In an action for death at a point on defendant’s railroad track habitually used by the public, evidence held to warrant a finding that the negligent failure to keep a lookout and to give warning was the proximate cause of the accident.
    7. Railroads <©=>350(1) — Death at Crossing — Place of Accident — Question for Jury.
    In an action for the death of a person killed on defendant’s railroad track, whether deceased was at a crossing when struck held for the jury.
    8. Railroads <©=>398(1) — Persons on Track.
    In an action for death of person at night on a railroad track, evidence held to warrant a finding that the deceased was not sitting or lying on the track when struck, although nobody saw the accident.
    9. Railroads <§=312(7) — Statutory Signals — Crossings.
    A place on a railroad track where persons on foot and in vehicles habitually crossed, with the knowledge and without the objection of a railroad, for a number of years, and where its employes operating its train over.such crossing might expect persons to be at any time of the day or night, imposed upon the company the duty to give statutory signals.
    10. Railroads <§=>370 — Persons on Track —Duty to Give Warning.
    If ordinary care would require a railroad to give warning of the approach of its trains by the blowing of whistles and the ringing of bells, at a place on the track habitually used by the public, failure to give such warning would be actionable negligence.
    11. Railroads <§=>369(3) — Persons on Track — Trespassers.
    A railroad is guilty of actionable negligence in failing to exercise ordinary care to discover and avoid injuring persons on the track at such places and upon such occasions as one of ordinary prudence would expect to find them, and whether such persons are trespassers or rightfully upon the track makes no difference,' apart from issues of contributory negligence. •
    12. Railroads <§=>350(13) — Persons on Track — Contributory Negligence.
    The act of a person going upon a railroad track at a public crossing, or where the railroad has expressly or impliedly licensed the act, is not negligence per se.
    13. Railroads <§=»398(4) — Death on Track —Contributory Negligence.
    In an action for death at a point upon a railroad track habitually used by the public, evidence held to warrant a finding that deceased was not guilty of contributory negligence.
    14. Railroads <§=>381 (4) — Persons on Track — Assumption oe Risk.
    In an action for death on railroad track at a point habitually used by the public, the 'law of assumed risk does not apply.
    15. Railroads <§=>381 (4) — Habitual Use oe Roadbed — Contributory Negligence.
    A person was not guilty of contributory negligence in going upon a railroad track at a point habitually used by the public, where there was no other convenient way of reaching his destination, or where there was another convenient way, but he had no knowledge of it.
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Suit by Mrs. Elizabeth Douthit for herself and as next friend for her children, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Crosby & Harrell, of Greenville, for appellant.
    B. Q. Evans, of Greenville, and W. A. Shields, of Houston, for appellees.

      Writ of error denied by Supreme Court March 19, 1919.

   TALBOT, J.

The appellee Mrs. Elizabeth Douthit brought this suit for herself and as next friend for her four minor children to recover- of appellant damages sustained on account of the death of her husband and the father of said children, Jeff Douthit, who it is alleged was killed on November 5, 1916, by being negligently struck by one of appellant’s trains. The petition, alleges that the deceased was struck and killed while upon or near appellant’s railroad track, about one mile east or northeast of the town of Josephine, and at or near a dirt road crossing maintained by appellant, and which, by long-continued and constant use on the part of the public, with the knowledge and consent, or without objection, of appellant, had become a public crossing; that appellant’s railroad track between the town' of Josephine and said crossing, and for a considerable distance eastward beyond said crossing, had been commonly, habitually, and notoriously used for a number of years as a pathway by a great many persons in going to and returning from said town of Josephine, with the knowledge and consent of appellant or without objection on its part. It is further alleged that the servants of appellant operating the locomotive and train which struck and killed the deceased, Jeff Douthit, negligently failed to keep a proper lookout for persons who might be on its track between Josephine and said dirt road crossing, or for persons upon and using the said crossing, and negligently failed in approaching said crossing to ring the bell or blow the whistle of the locomotive drawing said train, as required by law, or in. any manner to warn persons who might be walking upon or near the railroad track between the town of Josephine and said crossing of the proximity of said train.

The appellant pleaded general and special demurrers, a general denial, and specially that the deceased assumed the risks whereby he was killed, and that he was guilty of contributory negligence, protímately causing his death, in that at the time of the alleged accident he was a trespasser upon defendant’s track and roadbed at night, and that he was, through the voluntary use of intoxicating liquor, drunk or partially drunk, and that in an intoxicated condition he negligently went upon said track and remained there, either lying or sitting thereon, asleep, or in some .other condition which prevented him from knowing of the approach of the train that struck him, if he was struck by a train; that his negligence in drinking intoxicating liquor just before he went upon or near defendant’s track, and his negligence in remaining upon said track and failing to get off said track upon the approach of one of defendant’s trains, or his failure to look or listen for the approach of a train, was contributory negligence, which proximately caused his death. Appellant further pleaded that the crossing at which it was alleged that Jeff Douthit was killed was not a public crossing, and that there was no public road leading over and across the defendant’s track or right of way at said place, but that the right of way was fenced, and that the crossing mentioned in plaintiff’s petition as the place at which Jeff Douthit was killed was a private crossing, inclosed by gates. Appellant further pleaded that there was another convenient and safer way by which the deceased could have traveled from Josephine to his home at the time he was killed, and that the way along and over defendant’s track was a more hazardous and dangerous way, and that deceased voluntarily chose to travel the more dangerous way, and in so doing he assumed the risks thereof, and, if he was struck and killed by one of defendant’s trains, it was the result of his own negligence in. choosing the more dangerous route home, and was one of the risks assumed by him in voluntarily choosing to travel that way. When appellees closed their evidence and rested their case the appellant presented a motion praying the court to instruct the jury to return a verdict in its favor, because appellees’ evidence failed to show any actionable negligence on the part of appellant, and because the uncontradieted evidence showed that the deceased was guilty of contributory negligence and assumed the risk of injury in that h'e chose to walk upon appellant’s right of way when he had a convenient and safer way by which he could have traveled home, etc. This motion was overruled, and, at the conclusion of the introduction of all the evidence, appellant presented and requested the court to give a special charge to the effect that under the evidence the appellees were not entitled to recover and they would return a verdict in appellant’s favor. This special charge was refused, and the case submitted to the jury on a general charge. A verdict in favor of the appellees for $4,500 was returned and. judgment thereon entered.

The first assignment of error complains of the court’s action in overruling appellant’s motion for an instructed verdict at the close of the testimony offered by appellees, and the second in refusing to give its special charge directing th'e jury to return a -verdict in its favor requested at the conclusion of the introduction of all of the evidence.

The deceased was killed at a crossing generally used by the public soon after dark on Sunday evening, June 5,1916. This crossing is about a mile northeast of Josephine, and for about one-half mile southwest thereof the track rims straight, and at a down grade to the crossing. The appellant’s road was fenced and gates put in at the crossing to enable persons desiring to use it to do so. The crossing itself was practically level on the southeast side. It is upon a fill at the east end of a cut, and this fill causes the railway to be on an embankment, so that the north side of the crossing is' some three feet higher than the level of the road to the north thereof; yet there is no jump-off, but a gradual sloping of the dirt road crossing. The deceased resided about a quarter of a mile north of this crossing. The railway track of the defendant from Josephine to the crossing and beyond that point was, and had been for a number of years, commonly and habitually used by pedestrians,, both night and day, going back and forth to Josephine from the neighborhood in which Douthit resided and beyond. There was a path upon each side of the railway track near the end of the ties, but there was no path in the center- of the track. There was a public road from Josephine by which Douthit’s home could be reached. To do so by this route you would have to go due north from Josephine, and then turn east some distance, and then go south about 150 yards. It was about 500 or 600 yards nearer to go down appellant’s railroad track to the crossing near where the dead body pf the deceased was found, and then north to his home, than it was to travel the public road.

On the evening of his death Douthit left the town of Josephine, where he had spent the day, for his home. He had been drinking some during the day, and carried with him a suitcase containing some liquor, which he had bought in Dallas the day befoie. Ho was not drunk when he left Josephine; witnesses who saw him just before he left Josephine said they regarded him as perfectly sober. He was last seen alive walking upon the defendant’s railroad track going east and towards his home. This, according to the testimony of one witness, was about 15 or 20 minutes before the Lone Star Special, a fast train operated by appellant, passed Josephine going east, and in the same direction that Douthit was going when last seen. This train was due to pass Josephine at 7:03, and there is no evidence that it was late. No other train, so far as disclosed by the evidence, passed over this track before midnight. The body of Douthit was not found until the next morning. No witness saw Douthit killed. When first discovered his body was lying about 100 feet northeast from the crossing in question, and from 12 to 20 feet from the north or northwest end of the cross-ties. The suitcase was broken up, and the glass from one, and possibly two, broken bottles and parts of the suitcase were scattered along on the north side of the track, from the ends of the planks on the crossing in the direction of where the body was lying. A bottle of alcohol was also found intact. Prom the ends of the planks of the crossing, and outside thereof from 12 to 15 inches, it looked like something had been dragged which made a trail from the end of the planks to where the body was lying. This trail or mark alongside the track did not vary in distance from the track. The back of the deceased’s head was knocked away, and portions of the brains were found, the smaller about 6 feet from the crossing, and the larger about 15 or 20 feet. That portion of the head knocked off was more to the left side. The other bruises and wounds on the body were a deep cut on the left temple, bruises on the left cheek, the left arm was broken near the shoulder blade, the left side was crushed, the right leg was broken in two places, and the left foot bruised. The sole and heel of the left shoe were also torn off or nearly so. On the person of the deceased there was a purse in' the breast pocket of his coat containing $30 or $35 in currency and also his watch. The watch chain was broken and a part of it lying upon the ground. The watch was then running. Five dollars in silver and some loose change were also found on his person. The blood in the wounds was dry, and the body cold and stiff. There is no evidence of any kind or character indicating that Douthit met his death in any way except by being struck by the pilot beam or some other projecting part of the engine drawing' the train that evidently killed him, either while walking upon or turning to leave one of the paths alongside of the railway track. The engineer and ’fireman of the train known as the Lone Star Special, and which passed Josephine a short time after the deceased left that town going east on appellant’s railroad, each testified that he did not see Douthit or know anything about his being struck until after the night of the accident. Other witnesses testified that this train did not sound the whistle generally sounded before reaching this crossing; that the approach to the crossing from the west was a down grade, and often trains ran down this grade not under steam, and without making much noise. The evening the deceased met his death the moon was shining brightly. The usual way for one, who had traveled down the railroad track from Josephine, to reach Douthit’s home, was to leave the track at this crossing, turn to his left, and then go north. Other facts will probably appear in the discussion of the question for decision.

As shown above, appellant’s first assignment of error complains of the trial court’s action in overruling its motion for an instructed verdict in its favor made after appellees had closed their evidence in chief. This assignment must be overruled. The record discloses that appellant did not stand upon this motion, but after it was overruled proceeded to introduce testimony. By electing to introduce further testimony appellant waived all rights to complain of the court’s failure to grant its motion, and hence there is no merit in his contention. Railway Co. v. Saunders, 103 S. W. 459; Goggan v. Goggan, 146 S. W. 968; Railway Co. v. Hall, 156 S. W. 356; Grand Temple and Tabernacle, etc., v. Johnson, 156 S. W. 532; Peacock v. Coltrane, 156 S. W. 1087; Denton v. English, 157 8. W. 264. The appellant, however, at the conclusion of all the testimony, prepared and requested the court to give a special charge directing the jury to return a verdict in its favor, and the refusal of this charge is made the basis of the second assignment of error. The only proposition advanced under this assignment is as follows:

“In an action for death of a person alleged to have been killed by a train, mere proof of an unexplained killing, and of the fact that the defendant’s agents and servants in charge of one of its trains failed to blow the whistle or ring the bell, is not sufficient evidence to entitle plaintiffs to recover damages for deceased’s death, especially where there is no evidence showing the manner in which the deceased was killed, or tending to show that the failure to blow the whistle or to ring the bell was the proximate cause of the death of deceased.”

The question, presented is whether or not the evidence adduced at the trial in support of the. appellee’s action was sufficient to warrant the submission of the case to the jury and the verdict rendered by them. The contention of appellant is predicated upon the case of Railway Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049, and cases in line with, it, and it insists that this case is ruled thereby. In this view we do not concur, and in differing with the appellant and its counsel we have not failed to recognize the rule that made it incumbent upon appellees to show, in order to establish liability on the part of the appellant for the death of the deceased, Douthit, not only that appellant was guilty of negligence in respect to his death, but that such negligence was the proximate cause thereof. Our conclusion is that from the circumstances in evidence the jury was authorized to infer the facts from which the liability of appellant for the death of Douth-it would result. It very conclusively appears that he was struck and killed by appellant’s train at or very near the crossing in question, and the evidence is amply sufficient to show that he was not a trespasser, but where he had a legal right to be, if said crossing should be regarded as a public highway, and, if not such highway, then he was a licensee upon said crossing or that portion of appellant’s track where he was struck. If a mere licensee, appellant owed him the duty to exercise ordinary care to avoid injuring him. This included the duty to keep a proper lookout to discover his presence on the track and to give warning of the approach of the train. The law of this state is that if a portion of the roadbed of a railway company has been commonly and habitually used for a long time by the public as a footpath, with the knowledge and acquiescence of the company, it is considered as having licensed the public to use such portion of its roadbed for that purpose. Railway Co. v. Matthews, 99 Tex. 160, 88 S. W. 192, and cases there cited. The evidence was also sufficient to justify the jury’s finding, necessarily embraced in their verdict under the charge of the court, that appellant had knowingly permitted the public to use its roadbed between the town of Josephine and the crossing where the accident which resulted in Douthit’s death occurred, and for some distance beyond said crossing, for a number of years as a pathway, and had knowingly permitted said crossing itself, whether it be regarded as a public or private crossing, to be used by both pedestrians and persons traveling in vehicles as a passway over its roadbed, and that the servants of appellant, operating the train that struck and killed Douthit negligently failed to keep a proper lookout to discover him, and negligently failed to give notice and warning of the approach of said train by sounding the whistle or ringing the bell and that such negligence was the proximate cause of his death. If such was the character of the evidence, and we think- it was, the case is unlike Railway Co. v. Shoemaker, supra, and similar eases. In those cases the plaintiffs failed chiefly because it was impossible to say from the evidence adduced that the deceased at the time of the accident was at a crossing, or that the failure to keep a proper lookout or to give warning of the approach of the train by giving the signals was the proximate cause of the deaths. In Railway Co. v. Shoemaker the court said:

“But upon this question of proximate cause, in our opinion, the case hopelessly fails. No one can say from the evidence that the boys (Kitled) were at the crossing or that the failure to give the signals had anything to do with the deaths. So far as any inference can be drawn from the appearances stated, it is that they were upon the track and away from the crossing-.”

The Supreme Court .further said in that ■ease that the failure of the engineer to keep a proper lookout, either from incapacity or other reason, could only be deemed the proximate cause of the deaths when it appeared that the keeping of it would have prevented the accident, and that no inference of that fact could be drawn from the evidence. This we think is not true in the ease at bar. From the proximity of the deceased’s body to the crossing, the location of the wounds upon it, the broken parts of his suitcase, and other articles of.property in his possession when he left Josephine, which were found scattered along the railroad track eastward from the crossing, the inference is clear that the deceased was at the crossing when struck by appellant’s train. The conclusion is warranted that he walked east after leaving the town of Josephine upon, appellant’s railroad track; that it took him about 15 or 20 minutes to walk from Josephine to the crossing; and hence when the train struck him he had been upon the track about that length of time. It is also a reasonable inference to be drawn, from the location of the wounds upon the deceased’s body, that when struck by the train he was in the act of leaving the railroad track by turning north in the direction of his home, thereby presenting the left side of his body to the approaching train. The undisputed testimony is that all the wounds inflicted by the collision, except the injury to the right leg, were upon the left side of the body. There was a deep cut in the left temple, a bruise on the left cheek, the left arm was broken, the left foot bruised, and the left side crushed. A part of the head was also knocked off, and this wound was “more to the left side.” There is no evidence that the deceased was sitting or lying on the railroad track when struck, as is contended by appellant. Evidently he was not; for, had he been in either of those positions when the collision occurred, undoubtedly his body _ would have been crushed and mangled otherwise than it was. The nature of the injuries inflicted upon the body, and the distance the body was hurled forward and from the railroad track by the impact of the train, indicate unmistakably that the deceased was not sitting or lying on the track when struck, but that“he was on his feet, with his body erect. The road crossing at which the deceased’s body was struck.was not a public crossing in the sense that it had been made so by action of the commissioners’ court of the county; but it had been constructed by appellant and recognized by it, it seems to us, as a public highway, and, if not so recognized, it was unquestionably a place where persons on foot and in vehicles habitually crossed the railroad with the knowledge and without objection of appellant for a number of years, and where its employés operating its trains over such crossing might expect persons to be at any time of the day. or night. This, it occurs to us, imposed upon appellant’s train operatives the duty to give the statutory signals in approaching the crossing ; but, if not, it did impose upon them the duty- to exercise ordinary care to discover and avoid injuring persons using the crossing; and, if such care required the sounding of the whistle or the ringing of the bell in. approaching said crossing, the failure to perform that duty would be negligence, and, if such negligence should proximately cause injury to a person attempting to use the crossing, the railway company would be liable therefor. Whether the operatives of the train that struct and killed Douthit negligently failed to sound the whistle or ring the bell of th’e locomotive drawing said train, and such failure was the proximate cause of Douthit’s death, were questions of fact for the jury. And that the operatives of said train negligently failed to keep a proper lookout for persons who might be expected to be at said crossing the evening Douthit was killed, and that such negligence was the proximate cause of Douthit’s death, are reasonable inferences to be drawn from the circumstances in evidence. The railroad for the distance of at least a half mile west of the crossing and the direction from which the train approached was straight and unobstructed. The locomotive was carrying a bright headlight, and by reason thereof a person upon or near the crossing could be seen by those operating the locomotive at a long distance from the crossing, such distance as would warrant the inference that, if a proper lookout had been kept, the deceased would have been discovered, and the train, by the exercise of ordinary care, could, and probably would, have been stopped, or its speed so slackened as to have avoided striking the deceased. At any rate, we are of the opinion that it cannot be said as a matter of law that the facts and circumstances shown were insufficient to warrant the submission of the case to the jury. It has been several times held by the Supreme Court of this state that—

“a railroad company is guilty of actionable negligence in failing to exercise ordinary care to discover and avoid injuring persons upon the track at such places and upon such occasions as one of ordinary prudence would expect to find them; and whether such persons are trespassers or rightfully upon the tyack makes no difference in the determination of the issue of the company’s negligence in that respect, considered separately and apart from issues of contributory negligence of the person injured.” Railway Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; Railway Co. v. Malone, 102 Tex. 269, 115 S. W. 1158; Railway Co. v. Shiflet, 98 Tex. 326, 83 S. W. 677; Railway Co. v. West, 174 8. W. 287.

The rule is also well established that the act of a. person going upon a railroad track at a public crossing or where the railroad has expressly or impliedly licensed the act is not negligence per se. Railway Co. v. Matthews, 99 Tex. 160, 88 S. W. 192; Washington v. Railway Co., 90 Tex. 314, 38 S. W. 764; Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63; Railway Co. v. Crosnoe, 72 Tex. 79, 10 S. W. 342. The issue of contributory negligence was submitted to the jury in the present case and by them resolved in favor of the appellees. Being unable to say, as a matter of law arising upon the evidence, that the appellees were not entitled to recover, the assignment of error under consideration will be overruled.

The third assignment of error complains of the court’s action in refusing a special charge requested by appellant to the effect that if there was another convenient and safer way from Josephine to the home of the deceased, and he voluntarily chose the more dangerous way, by traveling on appellant’s railroad track, he thereby assumed the dangers incident to traveling the more dangerous way, and if he was struck and killed by one of appellant’s trains as a result of such choice to find for appellant. A similar, though perhaps a more accurate, charge was requested and refused in Railway Co. v. Broomhead, 140 S. W. 820, in which' a writ of error was refused; and in overruling an assignment of error complaining of its refusal the Court of Civil Appeals for the Fourth District, speaking through Mr. Justice Fly, said:

“The charge is fatally incorrect and defective, because it instructed the jury to find that the deceased had assumed a risk, when the law of assumed risk had no place in the case, contributory negligence alone being involved.”

This holding, we think, correct, and, following it, the assignment under consideration is overruled. The ease is distinguishable in' its facts from the case of Holt v. Texas Midland Railroad, 160 S. W. 327, and not ruled thereby.

The basis of the fourth assignment of error is the refusal of the court to give the following special charge requested by appellant:

“If you believe from the evidence that there was another and safer way from Josephine to the home of the deceased, which the deceased could have gone, and that to travel on the defendant’s railroad track was the more dangerous way, and that a person of ordinary prudence, situated as the deceased was, would have chosen the safer way, and that in choosing the other way he did not exercise the degree of care that would have been exercised by a person of ordinary prudence, you will find for the defendant.”

This charge is defective, and should not have been given because it leaves out of consideration altogether the question of another convenient way in. which the deceased could have gone to his home, and would have authorized a finding by the jury that he was guilty of negligence in traveling on appellant’s railroad track, if there was “another and safer way” he could have gone to his home, whether he knew of such way or not.' The court did instruct the jury, among other things, in the general charge, that if they believed from the evidence that the deceased was struck and killed by one of appellant’s trains,,.and that in using appellant’s railroad track he failed to use ordinary care for his own safety, to find for appellant.

The questions presented by the fifth and last assignment of error have been considered and decided against appellant in the consideration and disposition made of its second assignment, and require no further discussion.

The judgment of the district court is affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. HARLING.
    (No. 7564.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 18, 1918.
    Rehearing Denied Jan. 16, 1919.)
    1. Damages ©=>173(2) — Evidence—Earning Capacity — Measube oe Damages.
    In an action for personal injury, plaintiff’s testimony as to his income during a period of from 3 to 10 years preceding the accident was admissible, not as a measure of damages, but as a guide in enabling the jury to determine the proper amount by knowing what kind of remuneration would be open to plaintiff in a business he understood, and would and could resume were he not prevented by his injuries.
    2. Appeal and Ebkob ©=>1060(1) — Haemeess Eeboe — Aegument op Counsel.
    Remarks of plaintiff’s counsel in negligence case that jury could find contributory negligence and turn plaintiff away penniless, while improper, were not reversible error; facts not 'showing that jury were influenced thereby.
    3. Evidence ©=>366(2) — City Oedinance.
    In view of Vernon’s Say les’ Ann. Civ. St. 1914, art. 821, providing that ordinances printed and published shall be admitted in evidence without further proof, the testimony of the mayor and secretary of a city that an ordinance, limiting the speed of trains, was passed, published, and recorded was sufficient to authorize its admission.
    4. Municipal Corporations ©=122(3) — Oedi-nance — Evidence.
    It was not error to permit the mayor of the city to testify that an ordinance introduced in evidence was in force and effect at a specified time.
    5. BailRoads ©=347(8) — Crossing Accidents — Evidence.
    In an action for injuries received in a crossing accident testimony of the city’s mayor and secretary concerning a conversation they had with the officials of the defendant relative to placing a flagman or electric bells at the crossing held admissible, as tending to show defendant’s negligence.
    6. Evidence ©=471(24) — Conclusions.
    An objection that testimony that plaintiff, as result of his injuries, could not rise from a sitting posture and walk as well as he could before was a conclusion of the witnesses is without merit.
    7. Evidence ©=492 — Speed oe Train — Conclusion.
    Evidence of a witness that defendant’s train was moving at about 16 miles per hour was admissible, without showing witness’ qualification to judge of its speed.
    8. Damages ©=134(1) — Excessive Damages —Earning Capacity.
    Where it was shown that plaintiff had a life expectancy of 15 or 16 years, was permanently injured, totally disabled from performing profitable labor, and for a number of years up until about 2 years previous to injury had earned from $5,000 to $10,000 per year, a verdict for $20,000 is not excessive.
    9. Damages ©=185.(2) — Permanent Injuries —Evidence.
    Evidence held sufficient to sustain the jury’s finding that plaintiff’s injuries were permanent.
    10. Railroads ©=348(5) — Crossing Accidents — Speed—Evidence.
    In'an action for injuries received in crossing accident, evidence held sufficient to support finding that defendant’s train was running at the rate of 18 miles an hour.
    Lane, J., dissenting in part.
    Appeal from District Court, Eort Bend County; Samuel J. Styles, Judge.
    Suit by W. A. Harling against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Proctor, Vandenberge, Crain & Mitchell, of Victoria, and D. R. Peareson, of Richmond, for appellant.
    Campbell, Myer, Myer & Freeman, of Houston, and C. I. and W. I. McFarlane, both of Richmond, for appellee.

      Writ of error granted by Supreme Court March 19, 1019.

   LANE, J.

This suit was brought by W. A. Harling against the Galveston, Harrisburg & San Antonio Railway Company to recover damages for personal injuries alleged to have been sustained by him by reason of the negligence of the defendant company in a collision between an automobile in which he was riding and a passenger train at a point where the tracks of said railway company crossed Second street in the city of Richmond, in Ft. Bend county, Tex., on or about the 8th day of April, 1918.

In plaintiff’s petition it is alleged that the city of Richmond is an incorporated city, and that at the time of said accident there was in full force and effect a city ordinance, making, it unlawful for any railroad engineer, or any other person in charge of a railroad engine, to propel, any such engine or any train through any part of said city at a greater rate of speed than 6 miles per hour; that on said date he was an invited guest, riding in a certain automobile controlled by another; that said automobile was driven by one Epps, a careful and competent driver; that as the automobile in which he was riding as a guest approached and was in the act of crossing the track of the defendant company at the point where Second street in said city of Richmond is intersected by said track, a train thereon, being propelled at a high rate -of speed, struck said automobile with great force, threw the occupants thereof forcibly to the ground, and thereby seriously and permanently injuring plaintiff.

It was further alleged that .the street crossing at which the collision occurred was a much-used crossing, in fact one of the principal crossings in the city of Richmond, which fact was known to the defendant company, its agents, servants, operators, and employés; that said crossing was and is an extrahazardous and dangerous one, which fact was known to defendant, but unknown to the plaintiff at the time of the collision. The petition contained other allegations as follows;

“(1) That said injuries were further proximately caused by the negligence of the defendant, its agents, servant, operatives, and em-ployés, in propelling and running said train at the rapid and dangerous rate of speed at which it was being run and propelled, as herein 'alleged, and in violation of the city ordinances of the city of Richmond, as herein pleaded.
“(2) That said injuries were further proximately caused by the negligence of the defendant, its agents, servants, operatives, and em-ployés, in permitting the air brakes on said train to become and remain out of repair and good working order, as herein pleaded.
“(3) That said injuries were further proximately caused by the negligence of the defendant, its agents, servants, operatives, and em-ployé's, in not keeping a proper lookout to discover persons in a position of danger on said track, as was plaintiff, as herein pleaded. ,
“(4) That said injuries were further proximately caused by the negligence of defendant, its agents, servants, operatives, and employes, in not having a flagman or watchman stationed at said crossing, or a bell, or a block, or other safety device to give warning and notice of the approach of trains, engines, or cars, along said track, as herein pleaded.
“(5) That said negligent acts, alone and acting in conjunction with each other, proximately resulted in said train striking and colliding with the automobile in which this plaintiff was riding, and his consequent injuries therefrom.
“(6) That as the direct and proximate result of the negligence, and the negligent act and acts of the defendant, its agents, servants, operatives, and employés, as herein pleaded, plaintiff has suffered great and serious injuries and damages to his body, health, and mind, and has been compelled to spend largo sums of money for attempted alleviation of his condition, for medical attention and for nursing, and in other respects, and had been caused to lose his capacity to labor and earn money in the future beyond the trial of this ease, and has been caused to endure suffering, great and serious mental and physical pain and anguish, which will, in reasonable probability, continue for the remainder of his I life; and that plaintiff has been caused, by reason of said negligent acts on the part of de- ! fendant, its agents, servants, operatives, and em-ployés, to spend and incur, and will hereafter be caused to expend and incur, liabilities in large sums, for attempted alleviation of his condition, for medical attention, nursing, and in other respects, all of great value, to his damage in the sum of $50,000.”

Defendant, Galveston, Harrisburg & San Antonio Railway Company, answered by general denial and by plea of contributory negligence.

The case was submitted to a jury. After properly instructing the jury as to the meaning of the terms “negligence,” “contributory negligence,” and “proximate cause,” as used in the charge, the court submitted certain special issues. Answering these issues, the jury found, among other things not necessary to be here stated, the following:

(1) That the plaintiff, Har-ling, was injured at the time and place, and in the manner substantially as alleged in his petition, and that said injuries are permanent.

(2) That the train of defendant which struck the automobile in which plaintiff was riding was being run at the rate of 18 miles-an hour as it left the bridge and approached the crossing in the city of Richmond at the time of the collision complained of.

(3) That said train was being operated by those in charge of the engine drawing, the same at a dangerous rate of speed to persons-about to use the crossing by way of a public street in the city of Richmond, under the circumstances then existing; that the running of said train at such speed under the-circumstances then existing was negligence,, and that said negligence was a proximate-cause of the plaintiff’s injuries.

(4) That the crossing at which the collision between defendant’s train and the automobile-in which plaintiff was riding was at such-time a much-used public crossing by the public in the city of Richmond, and that the fact that said- crossing was so used was known to-defendant at the time of the collision, and had been so known long prior thereto.

(5) That said crossing at the time of said collision was an extra dangerous and hazardous crossing under the then existing circumstances, and this fact was known to the defendant company and the operatives of its traint.

(6) That the defendant company had no flagman, signal, or any other device at said-crossing to warn persons attempting to cross-its railroad track at said crossing of approaching trains or engines along said track at the time of said collision which resulted in-the plaintiff’s injury, and that such failure to have such flagman, signal, or other device-at said crossing was negligence as defined in the court’s charge, and was a proximate cause of plaintiff’s injuries.

(7) That at the time of the collision plaintiff, Harling, was an invited guest in said au-tomooile.

(8) That the driver of the automobile, Laurence Epps, was not guilty of negligence in driving said automobile on the railway track under the circumstances then existing. ,

(9) That the plaintiff, Harling, did usé such degree of care for his safety as a man of ordinary prudence would have used, under the same or similar circumstances, to discover the approach of the train, which collided with said automobile, before the same was; driven upon the track, and to avoid the danger resulting therefrom.

(10) That the plaintiff was not guilty of contributory negligence in entering on the railway track at the time and under the existing circumstances.

(11) That the sum of money which, if paid now, would reasonably compensate the plaintiff for the damages sustained by him as a result of his said injuries is $20,000.

Upon these findings the trial court rendered judgment in favor of plaintiff, Harling, for the sum of $20,000, with 6 per cent, interest thereon from the date of judgment until paid. From this judgment the railway company has appealed.

The substance of the first and second assignments is: First, that the evidence is insufficient to show negligence. on the part of the defendant company; second, that if it be conceded that the acts of negligence alleged by plaintiff were shown, still it conclusively appears from the evidence that none of such acts were the proximate cause of plaintiff’s injuries, but, on the contrary, it is conclusively shown by the evidence that the negligence of Lawrence Epps, the driver of the automobile, in driving the same upon the railway track in front of the approaching train, under the attending circumstances, was the proximate cause of the plaintiff’s injuries; that said negligence of said driver is chargeable to plaintiff, and amounted to contributory negligence on the part of plaintiff; that the evidence shows that the plaintiff was also guilty of contributory negligence in not exercising ordinary care to prevent the driver from so driving said automobile on the track in front of said train; and that such negligence was the proximate cause of plaintiff’s injuries. Therefore the evidence as a whole is insufficient to support the findings of the jury that the negligence of defendant was the proximate cause of plaintiff’s injuries, and the trial court erred in rendering judgment against defendant upon the findings of the jury.

In view of the fact that these two assignments cover three closely printed pages of appellant’s brief, and are followed by 30 propositions, many of which are very lengthy, and they in turn are followed by statements and arguments, all covering 107 pages of the brief; and in view of the further fact that appellant, in its brief, presents 45 assignments, which are followed by a great number of propositions, statements, arguments, etc., we find it impossible to set out the evidence relating to each of said assignments, or to discuss in detail the many propositions thereunder without making this opinion inexcusably long. We shall, therefore, content ourselves by saying that we think the evidence sufficient to support the findings of the jury hereinbefore stated, and also the judgment of the trial court, irrespective of other findings of the jury not herein stated. Assignments 1 and 2 are overruled..

By the third assignment it is insisted that the trial court erred in permitting the plaintiff, over the objection of the defendant, to testify that during a period of years, 3 to 10 in number, extending back from 2 years prior to the injuries for which he sues in this case, his income was from $4,000, $8,000, to $10,-000 per year, being different in different years; because such testimony was not admissible for the reason that it did not tend to prove the true and correct measure of damages claimed by plaintiff, and that it covered a period of time too remote to be considered in measuring the damages claimed by plaintiff. ■

The assignment cannot be sustained. The plaintiff testified, among other things, that 2 years before the time of his injuries involved in this case he came to Houston to look for a new location to carry on his former business, which he had conducted in the city of Boston, Mass.; that he had been engaged in the purchase and sale of horses and treating diseased horses as a veterinary; that his income from such business during the last year before removing to Houston, and for several years prior thereto, fluctuated considerably during the different years; that his income from such business ran from $5,000 to $8,000 for the last several years; and that he had made as high as $10,000 per year in such business. He testified as follows:

“The reason I came to Houston I was looking for a new location. I wanted to escape the cold weather. I found the conditions in Houston were different from what I expected, and my original plans of business did not exactly comply with my requirements here, so I caught on to something else to do for the time being. Not long after I got to Houston I started into the business of cracking and selling pecans. I established different stands in the city for selling these pecans. Had several very good places. I shipped pecans by wholesale to the East — Cincinnati and other places. I do not recall the names of the parties to whom I shipped at this time. I did well in that business. I had some extremely good stands in the city of Houston. Some brought me as much $20 net each week.”

The testimony objected to was admissible, “not as furnishing a, means of measure of damages, but as a guide or assistance in enabling the jury to exercise sound and just discretion in determining the proper amount.” It was proper to show what kind of remuneration would be open to the plaintiff in a business he understood, and which he would have the right to resume, were it not for the injuries which prevented him from again entering that business. 13 Oyc. 202; El Paso Electric Co. v. Murphy, 49 Tex. Civ. App. 486, 109 S. W. 489; Grimmelman v. Railway Co., 101 Iowa, 74, 70 N. W. 93, and authorities cited ; Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pae. 548, 65 Pac. 543, 53 L. R. A. 586; Turner v. Railway Co., 15 Wash. 213, 46 Pae. 246, 55 Am. St. Rep. 883; Railway Co. v. Gee, 27 Tex. Civ. App. 414, 66 S. W. 78; 8 R. C. U. p. 477; Railway Co. v. St. Clair, 21 Tex. Civ. App. 345, 51 S. W. 666; Wells Far-go & Co. v. Benjamin, 165 S. W. 120; Railway Co. v. Green, 182 S. W. 392.

The fourth and fifth assignments are grouped and are as follows:

“The court erred in failing and refusing to instruct the jury to disregard the statement made by C. I. McFarlane, one of plaintiffs attorneys, to the jury' while he was addressing the jury in this case in behalf of plaintiff, wherein he stated to the jury that, if they [the jury] found that plaintiff was guilty of contributory negligence, such finding would destroy the effect of their finding that plaintiff was entitled to damages, said statement having been made by such attorney immediately after he had just told the jury if they believed plaintiff was injured to allow him damages for as much as $50,000, if they thought he was entitled to that much, and this statement was immediately followed ‘by the statement above complained of, and in connection therewith, the two statements being connected by the conjunction ‘but,’ because the effect of such statement, and particularly in view of the circumstances under which, and the connection in which it was made, showed an effort on part of counsel to tell the jury, and said statement had the effect of informing the jury, of the legal effect of a finding by them that plaintiff was guilty of contributory negligence, and that the effect of such finding would be to deny him any recovery, even though the jury might also find that he was entitled to damages, and the court also erred for the reasons stated in failing and refusing to reprimand said attorney for making said statement to the jury.
“The court erred in failing and refusing to instruct the jury to disregard the statement made by Sewall Meyer, one of plaintiff’s attorneys, while addressing the jury in’ behalf of plaintiff as follows: ‘You can find that he (plaintiff) was guilty of contributory negligence and turn him away penniless,’ because such statement was an effort of counsel to tell the jury, and same had the effect of telling the jury, that the legal effect of a finding by them that plaintiff was guilty of contributory negligence would be to deny any recovery in this case, and the court erred for the reasons just stated in failing and refusing to reprimand said attorney for making said statement and remark to the jury.”

The issue as to whether appellee was guilty of contributory negligence was a vital issue in the case, and was by the evidence a sharply drawn issue. A finding by the jury either way on such issue would find support from the evidence.

Such arguments of counsel, as complained of, have often been condemned by the courts of this state as improper. Fain v. Nelms, 156 S. W. 281-284; Patterson v. Bushong, 196 S. W. 962; Railway Co. v. Hodnett, 182 S. W. 9; American Express Co. v. Parcarello, 162 S. W. 930; Railway Co. v. Fleming, 203 S. W. 108; Railway Co. v. Kutac, 72 Tex. 653, 11 S. W. 127.

While the majority of this court hold that the arguments complained of were improper and should not have been permitted by the trial court, still, following the holdings of the decisions in the cases of Fain v. Nelms, Railway Co. v. Hodnett, Railway Co. v. Fleming, and Patterson v. Bushong, above cited, they refuse to reverse the judgment in this case because of the arguments, for the reason that they cannot say that such arguments, under the facts and circumstances proven, probably influenced the jury in finding for the plaintiff on the issue of contributory negligence. The writer, however, cannot agree with the majority in their conclusion on this question. As before stated, the evidence presents a close question upon a vital issue in the case, that is, as to whether the plaintiff was guilty of contributory negligence, as that term was defined by the court. I think a fair and reasonable inference to be drawn from the argument used by counsel is that the jury was in effect told by Mr. McFarlane, counsel for the plaintiff who presented the opening argument, that if they believed plaintiff was injured to allow him damages for as much as $50,000, but if they should find that plaintiff was guilty of contributory negligence such finding would destroy the effect of their finding that plaintiff was entitled to damages, thus inviting the jury to consider the legal effect of their fact findings. When this argument was made counsel for appellant urged proper objection thereto, but the’ court refused to reprimand counsel, and permitted him to proceed with his argument, apparently holding that such argument was proper. Thereafter, and after counsel for appellant had presented his argument to the jury, Sewall Myer, counsel for appellee, in his closing argument said to the jury:

“You can find that the plaintiff was guilty of contributory negligence and turn him away penniless.”

This argument following the argument of counsel McFarlane, and the silence of the trial judge, was an unauthorized and improper appeal to< the sympathy of the jury in behalf of appellee, and also a tentative invitation to the jury to consider the-legal effect of their findings and to disregard the evidence tending to show contributory negligence on the part of appellee and to> find damages for him. Such argument in my opinion fs not only in violation of the holdings of the respective courts in the cases of Fain v. Nelms, Railway Oo. v. Hodnett, Railway Co. v. Fleming, and Patterson v. Bushong, above cited, wherein the court in substance held that the jury are triers of fact solely, when the case is submitted upon special issues, and in such cases they have nothing to do with the legal effect of their findings; that the effect of their findings is a matter which could not properly concern them; that they are only to find the facts; that arguments, inviting the jury to consider, in finding such facts, wjiat the legal effect would be, are improper, and should not be allowed by the trial court; but they were also violative of the holdings of the courts in the case of Railway Co. v. Kutac, 72 Tex. at page 663', 11 S. W. 127; American Express Co. v. Parcarello, 162 S. W. at page 931.

In Patterson v. Bushong, supra, it is said:

“In a case submitted on special issues the counsel should not discuss in their argument to the jury the effect on the judgment to be rendered by the court of the findings of the jury on the issues tendered. It is true the bill of exception states that upon the objection of defendant’s counsel to the remarks of the counsel for plaintiffs here complained of ‘the court stopped counsel for plaintiffs,' and instructed the jury that it was their province to answer the issues to them submitted as questions of fact, regardless of their opinion as to the law, and that it was the duty of the court to apply the law to the facts as found by the jury,’ but the court declined to withdraw the case from the jury as requested by the defendant. While we are not prepared to say that, under the circumstances related, we would feel bound to reverse the judgment rendered upon this error alone, yet the error is apparent, and we do not feel satisfied that the instruction of the court to the jury removed entirely the natural and probable injurious effects of the improper argument.
“For the reasons indicated the judgment of the trial court is reversed and the cause remanded.”

In Railway Co. v. Kutac, supra, it is said:

“The counsel for plaintiffs in his opening argument used this language in addressing the jury: ‘Gentlemen, these powerful railroad corporations will not do justice to any one unless compelled to do it. If they were to kill your horse to-day they would not pay you anything for it, but they would tell you to sue and go to the court for your money, and then they would fight you with all their power. They will take any advantage of you they can, no matter how just your case. Now I hope you will make them pay the last cent you can in this case for killing their mother.’
“There is no evidence contained in the record authorizing these remarks. The court properly instructed the jury not to be influenced by them, but the finding of the jury ‘for the full amount sued for’ indicates that this language was more effective than the court’s instruction. Railway Co. v. Cooper, 70 Tex. 67 [8 S. W. 68].
“For the reasons mentioned we are of opinion that the judgment should be reversed, and the cause remanded.”

In American Express Co. v. Parcarello, supra, it is said:

“Can it be said, then, that the remarks of the counsel, when viewed in the light of the court’s silence, did not have an improper influence upon the jury, as the same pertained to the vital issue in the case? The majority of this' court are of the opinion that said remarks made in the opening argument were calculated to have, and did have, such an influence; nor can it be said that the experienced counsel, in making the remarks, was indulging in idle talk.”

The writer has been unable to find any case in which arguments such as complained of here have been; in any manner approved, but to the contrary, in all cases in which they are complained of, they have been condemned. Yet in the face of such repeated condemnation by the courts, eminent counsel continue to indulge in them. Why, may we ask? Is it not apparent that they think that such arguments will probably bring about the rendition of a verdict favorable to their clients which would not otherwise be rendered? If not, why do they persist in such arguments? Are such experienced counsel merely making idle talk without hope of reward? I think not. Then, if these experienced counsel think that such arguments do probably influence the jury in their favor, why should this court say that no such probable effect would follow? Counsel should not be permitted to make such arguments in the face of repeated disapproval by the appellate courts, and then be heard to say, in answer to a complaint thereof on appeal, that they were harmless. The courts should not and, in my judgment, will not long, continue to disapprove such arguments only, but will reverse judgments which probably resulted only by reason thereof, and thus put an end to the repeated just complaints with which the appellate courts are often confronted.

By the sixth assignment the contention is made that the court erred in permitting plaintiff to introduce in evidence a certified copy of an ordinance of the city of Richmond which provides:

“That it shall be unlawful for any railroad engineer, or other person in charge thereof, to propel any engine or train through any part of the limits of the city of Richmond at a greater rate of speed than six miles per hour”

—and which imposed a penalty for its violation: First, “because it does not include the defendant within the scope of its operation, and has no application to defendant”; second, because it was not shown that said/ordinance was, at the time of the accident or collision involved in this case, a valid, enacted, and enforceable ordinance of said city according to the laws of the state of Texas.

It was shown by the testimony of T. B. Wessendorff, mayor of said city, and O. Rice, the then secretary of said city, that said ordinance was passed by the city council in 1909, and was properly recorded in the book of ordinances of said city. T. B. Wessendorff also testified that said ordinance, just after its passage, was published in the newspapers where all the official acts of the city were published; that said newspaper was a paper with a circulation around over the county and through the state. He also testified that said ordinance had never been repealed, and that it was in force and effect on the 8th day of April, 1915, the time of the accident involved in this case.

By article 821, Vernon’s Sayles’ Civil Statutes, it is provided that:

“All ordinances of the city, where printed and published by authority of the city council, shall be admitted and received in all courts and places without further proof.”

In the case of St. Louis, Southwestern Railway Oo. of Texas v. Garber, 108 S. W. first column, page 743, it was held that the court did not err in admitting in evidence an ordinance making it a misdemeanor, punishable by fine, for any person to operate a locomotive or car within the corporate limits of the city at a greater rate of speed than 6 miles per hour, because a sufficient predicate for the introduction of such ordinance, under the article quoted, was made by the testimony of secretary of the city that the ordinance was printed and published by authority of the city council; that the statute does not expressly require that proof of such publication shall be made only by the introduction in evidence of the order of the council, and therefore the production of such order was not indispensable; and that proof of such publication might be made by the oral testimony of one who is able to testify that such publication was in fact made. See, also, Muir’s Administrators v. City of Bardstown, 120 Ky. 739, 87 S. W. column 1, p. 1099.

We think the proof made was sufficient to authorize the admission in evidence of the ordinance involved in this case, and the court did not err in so holding.

Neither do we think the court erred in permitting Wessendorff, the mayor, to testify that said ordinance was in force and effect at the time of plaintiff’s injury, as contended by appellant in its seventh assignment.

The court permitted the mayor, Wessen-dorff, and secretary, O. Rice, to testify, over the objection of appellant, that they had, prior to the 8th day of April, 1915, talked with the officials of the defendant company about the condition of the crossing where plaintiff was later injured, and that in said conversation they asked said officials to put a flagman at said crossing or to put in bells, an electric device, at the same, and that in this conversation Mr. Van Vleek, an official of defendant, said he would send a man over at once to look the matter over and let them heaí from him; that a man was sent to Richmond, and that they went with him and looked at the crossing. Appellant has made the action of the court in admitting this testimony the grounds of its eighth and ninth assignments. We think this testimony, in connection with other testimony with reference to the condition of said crossing, admissible as tending to show negligence on the part of appellant, as alleged by appellee.

We overrule the tenth and eleventh assignments, which complain of the action of the court in permitting Dr. York and Dr. Murray to testify as to the physical and mental condition of appellee after he had received his injuries, and in permitting J. W. Hicks to testify that after appellee was injured he could not rise from a sitting posture and walk as well as he could before he was injured, and that he could not carry on a connected conversation, as he could do prior to the accident; the objection being that this testimony was but the conclusion of the witnesses. Chicago, R. I. Ry. Co. v. Long, 26 Tex. Civ. App. 601, 65 S. W. 882. There is no merit in such contention.

By its twelfth assignment appellant insists that:

“The court erred in permitting plaintiff’s witness, I. Jacobs, over defendant’s objection, to testify that the train which collided with the automobile was moving at the rate of about 15 miles per hour at the time he came to the door of a store in which he then was, and when he first saw the train, because the witness was not shown to be qualified to testify to the speed of a train, and said testimony was a conclusion of the witness, invading the province of the jury.”

This testimony was clearly admissible, and the court did not err in so holding.

Assignments 13 to 18, inclusive, in varying forms, complain of the refusal of the court to sustain the appellant’s 25 or more objections to the charge of the court. We have examined the charge of the court, and do not think it subject to any of the objections urged, except objection No. 7, set out under the fifteenth assignment. We find that the submission of this issue, and the answer of the jury thereto, though unsupported by evidence, was harmless, as the findings of the jury on the other issues amply support the judgment rendered.

It is insisted by the nineteenth assignment that the verdict of the jury for $20,000 and the judgment rendered for such sum is greatly excessive. It was shown by the evidence that at the time of his injury appel-lee had an expectancy of life of 15 or 16 years. Appellee testified that he had lived in Boston, Mass, for about 25 years before coming to Houston, 2 years before the accident; that for several years, while living in Boston just prior to coming to Houston, he had earned from $5,000 to $10,000 per year; and that he had come South because it was too cold for him in Boston, and for the purpose of looking out a new field to continue his former business. The evidence shows that ap-pellee was permanently injured and totally disabled from performing profitable labor. Under this state of the evidence we would not feel justified in holding that the verdict and judgment are excessive in amount.

By the twentieth, twenty-first, and twenty-seeond assignments insistence is made that the evidence conclusively shows that the injuries of appellee were temporary in their nature, and that appellee had entirely recovered from his injuries received by reason of the collision with appellant’s train. There is no merit in this contention. The evidence was amply sufficient to sustain the findings of the jury that such injuries were permanent.

What we have said with reference to assignment 15 is a full answer to the contention, made by the twenty-third, twenty-fourth, and twenty-fifth assignments.

By the twenty-sixth and twenty-seventh assignments complaint is made of the finding of the jury that the speed of the train was a proximate cause of appellee’s injuries. The evidence was .sufficient to support the finding of the jury upon this issue.

By the twenty-eighth, twenty-ninth, and thirtieth assignments insistence is made that the finding of the jury that the train in question was running at the rate of 18 miles per hour at the time of the collision is unsupported by the evidence, and, to the contrary, the evidence shows that said train was being operated at a moderate rate of speed, not exceeding 6 miles per hour. We think the •evidence amply sufficient to support the finding of the jury. Several witnesses testified that the train was running from 15 to 30 miles per hour at the time of the collision, and it was shown that when the train struck the automobile in which appellee was riding he and one of the other occupants thereof were thrown 50 to 60 feet from the point of collision.

Assignments 31 to 39, inclusive, are complaints of the answer of the jury to' certain special issues submitted by the court, the contention,1 being that such answers are not supported by the evidence. We overrule all of these assignments. We think such answers are sufficiently sustained by the evidence.

The fortieth, forty-first, forty-second, and forty-third assignments complain of the refusal of the trial court to give to the jury appellant’s requested charges 3 and 4, and in giving an additional charge to the main charge. The complaint is not tenable. .The additional charge of the court complained of practically presents the substance of the requested charges, and was doubtless given to meet the request thus made.

There is no error presented by assignments 44 and 45. They are therefore overruled.

The majority of the court being of the opinion that no error such as should cause a reversal of the judgment of the trial court has been presented, such judgment is affirmed. The writer dissenting as indicated herein.

Affirmed.
      i!=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes