BUCK, J.
This is a suit by Mrs. Mary Eugenia Pipes, a feme sole and surviving widow of Richard E. Pipes, deceased, and A. B. Pipes and wife, Mrs. Eula Pipes, the father and mother of Richard E. Pipes, who sue for his death in a railway accident as a result of a collision between the north-bound Chicago, Rock Island & Gulf Railway Company train and the car in which Richard E. Pipes was riding.-
The accident occurred in the early morning of February 4,1928. The evidence shows that Mr. Pipes and his wife spent the night before the accident at Arlington Heights at her mother’s home. That they drove together in their Ford eoupé, leaving her mother’s home about 6 o’clock, and went to 803 Houston street, Port Worth, where Mrs. Pipes was working at the time. Pipes usually reached his place of employment, at the Magnolia Petroleum Company, about 8 o’clock, starting to his work about 7:30, but the morning of the accident he started earlier, and, on account of rain, did not wait at the place of his wife’s employment, but went on his way towards his work. His wife oftentimes went in the car with him and also went for him in the afternoon. As Pipes was going east on Twenty-Third street, he crossed the Fort Worth & Denver City Railway tracks, ahd as he approached the Rock Island tracks, a train was going north. When he reached the place where the railway tracks crossed 'Twenty-Third street, there were a number of automobiles on each side of the tracks, standing still, evidently waiting for the on-cóming Rock Island train to pass; the engineer had whistled, and the glare of the headlight lighted up the track. Pipes probably slowed" up but did not stop, and, as he attempted to cross, his ear was hit by the on-coming train and he was fatally injured, dying about 12:05 p. m. that day in a hospital.
An ordinance of the city of Port Worth limits the speed of railroad trains within the city limits to 18 miles an hour. The evidence shows that this train was running in excess of such speed, or about 25 miles an hour or more. H. D. Miller, a driver of a bus for the Northern Texas Traction Company, testified that the train was running about 25 miles an hour. Other witnesses put the speed of the train higher. When the train struck the Ford car, just as it was nearly across the track, it carried it down the track some distance. R. H. Boyce, a witness'for plaintiff, testified that in his opinion the train was running that morning about 35 or 40 miles an hour.
The cause was submitted to a jury, and the jury found: (1) That the running of defendant’s train at a speed in excess of 18 miles an hour immediately and prior to the time of the accident was the proximate cause of the death of Richard E. Pipes; (2) that the failure of defendant to have installed and in good working order at the crossing in question an adequate signal bell which would ring loud enough to give persons approaching said crossing notice of the approach of a train was negligence, as defined in the charge; (3) that such negligence was a proximate cause of the death of Richard E. Pipes; (4) that the failure of defendant at the time of the accident to have a flagman or watchman at the crossing in question for the purpose of keeping watch for trains of defendant, and to warn the public having occasion to cross such track, was negligence; (5) that such' negligence was a proximate cause of the death of Richard E. Pipes; (6) that the construction and maintenance of defendant’s depot or station near the intersection of East Twenty-Third street obstructed the view and prevented Richard E. Pipes from seeing the approaching or on-coming train; (7) that the maintenance of such obstruction did not constitute negligence on the part of defendant; (8) that Richard E. Pipes did not stop his car which he was driving just before he started to cross defendant’s track at the place of the collision; (9) that the failure of Richard E. Pipes to so stop his car was not negligence; (10) that Richard E. Pipes looked to see if a train was approaching said crossing before he started to cross defendant’s track; (11) that Richard E. Pipes, before he started to cross defendant’s track, listened to discover the approach of said train; (12) that Mary E. Pipes has suffered damages in the sum of $5,682.50, by reason of the death of her husband.
Upon the verdict so returned, the court rendered judgment for Mrs. Mary E. Pipes and against the Chicago, Rock Island & Gulf Railway Company, a corporation, in the sum of $5,682.50, together with interest from date of judgment, and all costs of suit.
A. B. Pipes, the father of the deceased, having testified that his son was not at the .time of his death contributing anything to the support of his father and mother, A. B. Pipes and Eula Pipes, the court rendered judgment against them as to any claim for damages urged by them. Prom this judgment the defendant has appealed.
The evidence showed that the watchman employed by the defendant railway company was not required to begin his duties until 7 o’clock a. m.; that the accident occurred about 6:15 a. m.
The defendant submitted to the court a peremptory charge in its favor. At least the majority of us have concluded that such per-, emptory instruction should not have been given. By undisputed testimony, defendant was running its train on the morning of the accident in excess of IS miles an hour; the speed being variously estimated from 25 to 40 miles an hour. The jury found in response to special issues submitted that the depot constructed by defendant obstructed the view and precluded the deceased from seeing the approach, of the on-coming train on the morning of the accident, but that the construction of such depot, and permitting it to remain where it was, was not negligence on the part of the defendant railroad company; that Richard E. Pipes was not guilty of negligence in not stopping his car before driving on defendant’s tracks; and that deceased did listen and did look for the approach of trains on defendant’s tracks at the point of collision.
The evidence showed that the flagman wa!s present, probably in the shack, at the time the accident occurred. It will be remembered that the accident occurred about 6:15 a. m. on February 4, 1928. At that time of the year it was still dark when the accident occurred. While a person might hear the noise of an approaching train and see the glare of the headlight, yet he might not be able to determine upon what track the train was running, and the evidence showed that deceased was nearly clear of the track when his car was hit by the approaching train. If the train had not been running in excess of 18 miles an hour, he would have been across and the accident would not have occurred.
Several witnesses testified for plaintiff as to the number of vehicles ordinarily passing at this time of day along this street intersecting the railroad tracks. Damon Davis, coun-' ty engineer of Tarrant county, testified that traveling east over Twenty-Third street one crosses three tracks, the Port Worth & Denver, the Gulf, Colorado & Santa Fé, and the Chicago, Rock Island & Gulf. That one crosses not only the main lines of these railroads, but various switch tracks. That these tracks intersect East Twenty-Third street for a distance of some 200 feet. That standing near this crossing are two , depots and the flagman’s shanty; the depots are north of the crossing and the flagman’s shanty is south of the crossing; the depots to the north belong to the Fort Worth & Denver and to the Rock Island.
H. B.
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BUCK, J.
This is a suit by Mrs. Mary Eugenia Pipes, a feme sole and surviving widow of Richard E. Pipes, deceased, and A. B. Pipes and wife, Mrs. Eula Pipes, the father and mother of Richard E. Pipes, who sue for his death in a railway accident as a result of a collision between the north-bound Chicago, Rock Island & Gulf Railway Company train and the car in which Richard E. Pipes was riding.-
The accident occurred in the early morning of February 4,1928. The evidence shows that Mr. Pipes and his wife spent the night before the accident at Arlington Heights at her mother’s home. That they drove together in their Ford eoupé, leaving her mother’s home about 6 o’clock, and went to 803 Houston street, Port Worth, where Mrs. Pipes was working at the time. Pipes usually reached his place of employment, at the Magnolia Petroleum Company, about 8 o’clock, starting to his work about 7:30, but the morning of the accident he started earlier, and, on account of rain, did not wait at the place of his wife’s employment, but went on his way towards his work. His wife oftentimes went in the car with him and also went for him in the afternoon. As Pipes was going east on Twenty-Third street, he crossed the Fort Worth & Denver City Railway tracks, ahd as he approached the Rock Island tracks, a train was going north. When he reached the place where the railway tracks crossed 'Twenty-Third street, there were a number of automobiles on each side of the tracks, standing still, evidently waiting for the on-cóming Rock Island train to pass; the engineer had whistled, and the glare of the headlight lighted up the track. Pipes probably slowed" up but did not stop, and, as he attempted to cross, his ear was hit by the on-coming train and he was fatally injured, dying about 12:05 p. m. that day in a hospital.
An ordinance of the city of Port Worth limits the speed of railroad trains within the city limits to 18 miles an hour. The evidence shows that this train was running in excess of such speed, or about 25 miles an hour or more. H. D. Miller, a driver of a bus for the Northern Texas Traction Company, testified that the train was running about 25 miles an hour. Other witnesses put the speed of the train higher. When the train struck the Ford car, just as it was nearly across the track, it carried it down the track some distance. R. H. Boyce, a witness'for plaintiff, testified that in his opinion the train was running that morning about 35 or 40 miles an hour.
The cause was submitted to a jury, and the jury found: (1) That the running of defendant’s train at a speed in excess of 18 miles an hour immediately and prior to the time of the accident was the proximate cause of the death of Richard E. Pipes; (2) that the failure of defendant to have installed and in good working order at the crossing in question an adequate signal bell which would ring loud enough to give persons approaching said crossing notice of the approach of a train was negligence, as defined in the charge; (3) that such negligence was a proximate cause of the death of Richard E. Pipes; (4) that the failure of defendant at the time of the accident to have a flagman or watchman at the crossing in question for the purpose of keeping watch for trains of defendant, and to warn the public having occasion to cross such track, was negligence; (5) that such' negligence was a proximate cause of the death of Richard E. Pipes; (6) that the construction and maintenance of defendant’s depot or station near the intersection of East Twenty-Third street obstructed the view and prevented Richard E. Pipes from seeing the approaching or on-coming train; (7) that the maintenance of such obstruction did not constitute negligence on the part of defendant; (8) that Richard E. Pipes did not stop his car which he was driving just before he started to cross defendant’s track at the place of the collision; (9) that the failure of Richard E. Pipes to so stop his car was not negligence; (10) that Richard E. Pipes looked to see if a train was approaching said crossing before he started to cross defendant’s track; (11) that Richard E. Pipes, before he started to cross defendant’s track, listened to discover the approach of said train; (12) that Mary E. Pipes has suffered damages in the sum of $5,682.50, by reason of the death of her husband.
Upon the verdict so returned, the court rendered judgment for Mrs. Mary E. Pipes and against the Chicago, Rock Island & Gulf Railway Company, a corporation, in the sum of $5,682.50, together with interest from date of judgment, and all costs of suit.
A. B. Pipes, the father of the deceased, having testified that his son was not at the .time of his death contributing anything to the support of his father and mother, A. B. Pipes and Eula Pipes, the court rendered judgment against them as to any claim for damages urged by them. Prom this judgment the defendant has appealed.
The evidence showed that the watchman employed by the defendant railway company was not required to begin his duties until 7 o’clock a. m.; that the accident occurred about 6:15 a. m.
The defendant submitted to the court a peremptory charge in its favor. At least the majority of us have concluded that such per-, emptory instruction should not have been given. By undisputed testimony, defendant was running its train on the morning of the accident in excess of IS miles an hour; the speed being variously estimated from 25 to 40 miles an hour. The jury found in response to special issues submitted that the depot constructed by defendant obstructed the view and precluded the deceased from seeing the approach, of the on-coming train on the morning of the accident, but that the construction of such depot, and permitting it to remain where it was, was not negligence on the part of the defendant railroad company; that Richard E. Pipes was not guilty of negligence in not stopping his car before driving on defendant’s tracks; and that deceased did listen and did look for the approach of trains on defendant’s tracks at the point of collision.
The evidence showed that the flagman wa!s present, probably in the shack, at the time the accident occurred. It will be remembered that the accident occurred about 6:15 a. m. on February 4, 1928. At that time of the year it was still dark when the accident occurred. While a person might hear the noise of an approaching train and see the glare of the headlight, yet he might not be able to determine upon what track the train was running, and the evidence showed that deceased was nearly clear of the track when his car was hit by the approaching train. If the train had not been running in excess of 18 miles an hour, he would have been across and the accident would not have occurred.
Several witnesses testified for plaintiff as to the number of vehicles ordinarily passing at this time of day along this street intersecting the railroad tracks. Damon Davis, coun-' ty engineer of Tarrant county, testified that traveling east over Twenty-Third street one crosses three tracks, the Port Worth & Denver, the Gulf, Colorado & Santa Fé, and the Chicago, Rock Island & Gulf. That one crosses not only the main lines of these railroads, but various switch tracks. That these tracks intersect East Twenty-Third street for a distance of some 200 feet. That standing near this crossing are two , depots and the flagman’s shanty; the depots are north of the crossing and the flagman’s shanty is south of the crossing; the depots to the north belong to the Fort Worth & Denver and to the Rock Island.
H. B. Miller, plaintiff’s witness, testified that he saw the Ford eoupé as he was approaching the Fort Worth & Denver track, and that it was probably 20 or 30 seconds before the crash came. That he supposed the eoupé ran about 30 or 40 feet after he first saw it before it collided. That it seemed to him that the coupé slowed up for a second or two and then went ahead. That as he (Miller) approached the crossing he heard several different whistles blowing.
R. H. Boyce, witness for plaintiff, who had been working at Swift & Company’s plant for more than three years, testified that there were some 25 or 30 automobiles waiting to cross the tracks while the defendant’s train was across the tracks after the accident. These vehicles accumulated during the “tie-up” of some thirty minutes. Therefore, ap-pellees insist that evidently the defendant was guilty of negligence in not keeping a watchman at the crossing all the time, or in not keeping a signal bell in good operating condition. It is urged by appellees that the view of the deceased up the track of defendant north of the crossing was obstructed by the building which the railroad company had built so near Twenty-Third street, and that such depot building obstructed the view of a person traveling in an easterly direction and about to cross defendant’s tracks until such person was almost upon the tracks. That if the deceased had heard the whistle of defendant’s train and had seen the headlight, the jury would have been justified in believing that it was the whistle of one or the other of the engines shown to have been north of the crossing at the time of the accident; that as- ' suming that the deceased heard the whistle of. defendant’s train and saw the headlight, the jury may have probably concluded that the deceased would be justified in presuming that the train would not travel at an unlawful rate of speed at the crossing, and if such had been the case there would have been ample time to cross the tracks before the train reached the intersection where the accident occurred. The majority at least agree with these reasons advanced and overrule appellant's fourth proposition.
Appellant urges error in the failure of the trial court to submit this issue: “Do you find and believe from the evidence that the deceased would have discovered the approach of the train by keeping a reasonable lookout, in time to have stopped before going on the crossing?”
It will be remembered that the jury was asked to find:.. Whether deceased stopped his car just before he started across the track, and, if not, whether this was negligence, and the jury found that he did not stop the car and that such failure was not negligence. Furthermore, the issue was submitted to the jury as to whether the deceased, before he started to cross the track, looked to see if the train was approaching, and the jury answered that he did; and whether before he started across the track he listened to discover the approach of a train, and the jury found that
he did. These appear to he the only issues submitted as to the contributory negligence of the deceased. Appellant urges that they do not- go far enough, that the finding of the jury does not touch the question whether he should have looted and listened sooner, and whether by looking and listening at a proper distance from the crossing, he would have discovered the train in time to avoid the accident ; or, in other words, whether, by the use of reasonable care for his own safety he would have escaped injury. That it may be that the deceased was negligent in not discovering the train sooner, and that “just before” he started to cross defendant’s track at the place of the collision, limited the matter of negligence of the deceased to the particular time “just before” he started to cross the track. That in the exercise of reasonable care for his own safety, the jury might have found, if the issue had been submitted to them, that if the deceased had looked and listened sooner, at a proper distance from the crossing, he would have discovered the train in order to have avoided the accident. That the jury may have had in mind in answering questions 9 and 1Ó that the deceased may not have seen the train until he was so close to the track that he could not then stop. But that it may be that he was negligent in not discovering the train sooner. We conclude that the trial court should have submitted issue No. 2, and for the failure to do so, the judgment must be reversed and the cause remanded.
In the defendant’s trial answer, it pleaded “that the deceased, Eiehard E. Pipes, was well acquainted with the crossing where the accident occurred and knew that the public road on which he was traveling crossed the railroad tracks at that point, and knew that a train might be expected to pass along the track at any instant; and it was his duty in the exercise of ordinary care and caution for his own .-safety to keep a reasonably careful lookout, before going on the track, for the approach of a train in order to avoid being struck.”
We think that this allegation sufficiently raised the issue tendered and refused, if such allegation was supported by the evidence. While it is difficult to point out the testimony of any pártieular witness in support of the allegation above referred to, yet we think the jury might have properly concluded from all of the evidence that the deceased did not exercise reasonable care and prudence anterior to' the time “just before he started to cross defendant’s tracks.”.
In Montrief & Montrief v. Bragg, 2 S.W.(2d) 276, by the Commission of Appeals, the court stated the well-recognized rule that a defendant has the right to an affirmative presentation to the jury of any facts or group of facts relied on in his pleading as a defense and raised by the evidence, which,' if true, would establish such defense.
H. D. Miller, witness for plaintiff, in testifying as to how near the track it would be necessary for a traveler to approach before he could look past the depot and see up the track north, said:
“In approaching this crossing from the west, as to how close you have to get to the west rail of the Eock Island track before you can see past that depot enough to see a train approach, I will say that to be safe you have got to drive just as close to the track as you can, and then stop and look up the track. The Eock Island depot is the thing that obstructs your view when you get near the track, and that little window sticking out there a few feet helps to cut off some of the view. That projection has a window in each side of it, and you can look! through those windows and see through there.”
R. H. Boyce testified that he and his brother-in-law were in a. Ford car on the morning of the accident on the east side of defendant’s tracks, and about 50 yards from it, when the accident happened. That they had stopped there to let the train pa.ss; that they were caused to stop ■ because of hearing the train whistle, and his idea was that the train was then about 100 yards up the track. On cross-examination he testified:
“I was in a closed automobile and I heard the train whistle when it was approximately 100 yards up the track, and hearing the whistle, I stopped to let it go by.”
W. W. Einney testified:
“I saw this Ford deceased’s ear coming, and I wondered to myself if the fellow was going to drive right up on the track; he was not going very fast, but I don’t have any idea how fast. I heard the train whistle back up there, and that is the reason I stopped before I got on the track. ⅜ * * 1 heard the train coming, and stopped to let it go by. » * ⅞ x stopped in about 20 or 30 feet from the track on which the train was traveling. *
* *
Mr. Boyce drove up behind me and stopped. * * * The first thing that attracted my attention to this train was that as I was coming along there I heard the train whistle back up in the yards. I suppose it was about one quarter of a mile from the crossing when I heard it whistle. ⅜ * * i did not pay any attention to the noise of the train, because I was looking for the train. I did not have to listen for the noise. I guess I could have heard the noise if I had listened. A train running about 30 miles per- hour would necessarily cause a good deal of noise. * * * In approaching this crossing from the west, if there are any ears in there; you practically have to get up on the track before you can see any distance up past the depot, because the depot is right in the way; of course, if the train is down near the crossing you can see it very well; if it is above the depot, you have to get up on the track
before you can see it. ‡ ⅝ * In my opinion, the south end of the depot is about 100 feet north of the .point of the accident, and I guess the depot is about 75 or 100 feet long. I guess it would figure out that if you were standing 15 feet west of the track you could see a train 200 feet north of the point of the collision.”
Other witnesses testified to practically the same facts and conclusion.
For the reasons stated, the judgment below is reversed, and the cause is remanded.