PLEASANTS, Chief Justice.
This suit was brought by appellant against appellee, and other defendants who were dismissed from the suit by plaintiff on the trial in the court below.
The cause of action alleged in appellant’s petition was for damages for the death of her husband, Charles Compton, which the petition alleges was caused by the negligence of appellee’s servants and agents in the operation of a train of ap-pellee across a public highway. The following are the specific grounds of negligence alleged in the petition:
“1. The defendant failed in -its statutory and common law duty to blow the train’s whistle or ring its bell until it passed said crossing.
“2. The defendant failed in its duty to equip its crossing with signal bells, lights and statutory crossing sign.
“3. The defendant failed in its duty to have a watchman at the crossing or maintain lights on its car.”
Appellee answered by general demurrer, general denial, and a plea of contributory negligence of the deceased husband of appellant; and further pleaded that the collision in which appellant’s husband was killed was caused solely by the negligence of Grover Carrington, the driver of the automobile in which the deceased was riding when he met his death.
Upon the conclusion of the evidence the trial court, at the request of appellee, instructed the jury to return a verdict in favor of appellee, and upon return of such verdict judgment was rendered in accordance therewith.
.
The evidence before the jury was sufficient to sustain the following findings of fact:
The train with which the automobile collided consisted of 87 empty cars and an
engine with a tender. The crossing at which the collision occurred was over the Galveston and Texas City public highway. There is no elevation of the highway at this crossing, the grade of the railway tracks and the highway being the same. The night was so dark and foggy that the driver of the automobile, moving at the lawful and reasonable rate of speed plaintiff’s evidence shows this automobile was moving, with its headlights burning and its brakes in good condition, and the driver keeping a careful lookout for obstructions on the crossing, could not discover the slowly moving train of empty cars on the crossing in time to have prevented collision with the moving train. There were no lights on the passing train nor signals of any kind to give warning to the occupants of the automobile that the train was crossing the highway. There was a railroad crossing sign on the west side of the crossing which could not be seen by those in the automobile approaching the crossing from the east. The engine and 60 of the empty cars had passed the crossing before the automobile which was coming from Texas City to Galveston and gotten within a mile of the crossing. At the time of the collision the engine pulling the cars was approximately two-thirds of a mile north of the crossing, and if any whistle was sounded or the bell on the engine was rung at that distance from the crossing it could not have been taken as a warning to the driver or any of the occupants of the automobile of the slowly moving empty cars then on the crossing. About an hour before this collision this automobile with the same driver and occupied by the same persons, except one other who returned with them from Texas City and was injured 'in the collision, had passed over this crossing coming from Galveston and may be charged with knowledge of the fact that the highway was crossed by the appellee railway, also by the International & Great Northern Railway, which crossed the highway a short distance west of the track of appellee. In addition to the usual board crossing signals on the west side of its tracks, the International & Great Northern Railway had flashlight signals at the crossing to give warning to those using the highway of any obstruction of the highway by passing trains.
The majority of the court are of opinion that this evidence before' set out raises issues of fact that should have been submitted to the jury, and therefore the trial court erred in granting defendant’s request for an instructed verdict in its favor.
The appellee relies upon the cases of Texas & N. O. Ry. Co. v. Stratton (Tex. Civ.App.) 74 S.W.(2d) 741, and Texas & N. O. Ry. Co. v. Berry (Tex.Civ.App.) 74 S.W.(2d) 750. In each of these cases the San Antonio Court of. Appeals reversed a judgment of the trial court in favor of the plaintiff and rendered judgment in favor of the defendant Railway Company, and in each case a writ of error was denied by our Supreme Court.
We think these cases present facts which easily distinguish them from the instant case. The Court of Appeals in its opinion [Texas & N. O. Ry. Co. v. Stratton (Tex.Civ.App.) 74 S.W.(2d) 746] makes this statement of the facts:
“The accident occurred at the intersection of a paved state highway and one of the appellant’s spur tracks, two miles out of Eagle Pass, when the motorcar ran. head-on into the middle of a 380-foot train which was moving slowly across the highway at a probable rate of 3 or 4 miles per hour.
“The train was executing a switching movement. An engine with six cars was detached from a made-up train on the main tracks, a few hundred feet away, and was backed out on the spur track, past the. crossing, to pick up two cars stationed a short distance beyond the crossing. The coupling was made, the air connected, and the engine was pulling the eight cars back towards the main track. The engine, moving forward, had pulled the string of cars half way across the highway, when the motorcar,- moving over the highway at a rate of speed variously estimated at from 17 to 65 miles per hour, collided with the fourth car of the moving train.
“The four young people, residents of Bracketville, 40 miles from Eagle Pass,, were returning to their homes, after an evening spent in Eagle Pass .and Piedras. Negras.
“The accident occurred at 1 o’clock,. Sunday morning. The weather was very-cold.
“A nearly full moon (which had risen at 9:02 o’clock that night) was overhead. Some of the witnesses testified the night was fairly clear, with a few light clouds passing slowly by; that there was-
no fog or other elements to darken the moonlit night. Some testified there was a light fog.”
The opinion then sets out testimony of witnesses for the appellees to the effect that the night was utterly dark from fog which rolled over the vicinity in heavy clouds, obscuring all objects, including lights; that fog was so dense a driver of an automobile could not see more than 30 to 60 feet ahead; that the light of an automobile would not shine on box cars on the crossing more than 30 feet away; that even the powerful headlight on a locomotive showed hut dimly through the fog. The court then proceeds with its statement of the facts shown:
“The approach to the crossing was over a straight, even and practically level highway for a distance of at least 900 feet. All the evidence in the case, from both interested and disinterested sources, shows conclusively that when the mortorcar entered into that 900-foot zone the train was already upon the crossing.
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PLEASANTS, Chief Justice.
This suit was brought by appellant against appellee, and other defendants who were dismissed from the suit by plaintiff on the trial in the court below.
The cause of action alleged in appellant’s petition was for damages for the death of her husband, Charles Compton, which the petition alleges was caused by the negligence of appellee’s servants and agents in the operation of a train of ap-pellee across a public highway. The following are the specific grounds of negligence alleged in the petition:
“1. The defendant failed in -its statutory and common law duty to blow the train’s whistle or ring its bell until it passed said crossing.
“2. The defendant failed in its duty to equip its crossing with signal bells, lights and statutory crossing sign.
“3. The defendant failed in its duty to have a watchman at the crossing or maintain lights on its car.”
Appellee answered by general demurrer, general denial, and a plea of contributory negligence of the deceased husband of appellant; and further pleaded that the collision in which appellant’s husband was killed was caused solely by the negligence of Grover Carrington, the driver of the automobile in which the deceased was riding when he met his death.
Upon the conclusion of the evidence the trial court, at the request of appellee, instructed the jury to return a verdict in favor of appellee, and upon return of such verdict judgment was rendered in accordance therewith.
.
The evidence before the jury was sufficient to sustain the following findings of fact:
The train with which the automobile collided consisted of 87 empty cars and an
engine with a tender. The crossing at which the collision occurred was over the Galveston and Texas City public highway. There is no elevation of the highway at this crossing, the grade of the railway tracks and the highway being the same. The night was so dark and foggy that the driver of the automobile, moving at the lawful and reasonable rate of speed plaintiff’s evidence shows this automobile was moving, with its headlights burning and its brakes in good condition, and the driver keeping a careful lookout for obstructions on the crossing, could not discover the slowly moving train of empty cars on the crossing in time to have prevented collision with the moving train. There were no lights on the passing train nor signals of any kind to give warning to the occupants of the automobile that the train was crossing the highway. There was a railroad crossing sign on the west side of the crossing which could not be seen by those in the automobile approaching the crossing from the east. The engine and 60 of the empty cars had passed the crossing before the automobile which was coming from Texas City to Galveston and gotten within a mile of the crossing. At the time of the collision the engine pulling the cars was approximately two-thirds of a mile north of the crossing, and if any whistle was sounded or the bell on the engine was rung at that distance from the crossing it could not have been taken as a warning to the driver or any of the occupants of the automobile of the slowly moving empty cars then on the crossing. About an hour before this collision this automobile with the same driver and occupied by the same persons, except one other who returned with them from Texas City and was injured 'in the collision, had passed over this crossing coming from Galveston and may be charged with knowledge of the fact that the highway was crossed by the appellee railway, also by the International & Great Northern Railway, which crossed the highway a short distance west of the track of appellee. In addition to the usual board crossing signals on the west side of its tracks, the International & Great Northern Railway had flashlight signals at the crossing to give warning to those using the highway of any obstruction of the highway by passing trains.
The majority of the court are of opinion that this evidence before' set out raises issues of fact that should have been submitted to the jury, and therefore the trial court erred in granting defendant’s request for an instructed verdict in its favor.
The appellee relies upon the cases of Texas & N. O. Ry. Co. v. Stratton (Tex. Civ.App.) 74 S.W.(2d) 741, and Texas & N. O. Ry. Co. v. Berry (Tex.Civ.App.) 74 S.W.(2d) 750. In each of these cases the San Antonio Court of. Appeals reversed a judgment of the trial court in favor of the plaintiff and rendered judgment in favor of the defendant Railway Company, and in each case a writ of error was denied by our Supreme Court.
We think these cases present facts which easily distinguish them from the instant case. The Court of Appeals in its opinion [Texas & N. O. Ry. Co. v. Stratton (Tex.Civ.App.) 74 S.W.(2d) 746] makes this statement of the facts:
“The accident occurred at the intersection of a paved state highway and one of the appellant’s spur tracks, two miles out of Eagle Pass, when the motorcar ran. head-on into the middle of a 380-foot train which was moving slowly across the highway at a probable rate of 3 or 4 miles per hour.
“The train was executing a switching movement. An engine with six cars was detached from a made-up train on the main tracks, a few hundred feet away, and was backed out on the spur track, past the. crossing, to pick up two cars stationed a short distance beyond the crossing. The coupling was made, the air connected, and the engine was pulling the eight cars back towards the main track. The engine, moving forward, had pulled the string of cars half way across the highway, when the motorcar,- moving over the highway at a rate of speed variously estimated at from 17 to 65 miles per hour, collided with the fourth car of the moving train.
“The four young people, residents of Bracketville, 40 miles from Eagle Pass,, were returning to their homes, after an evening spent in Eagle Pass .and Piedras. Negras.
“The accident occurred at 1 o’clock,. Sunday morning. The weather was very-cold.
“A nearly full moon (which had risen at 9:02 o’clock that night) was overhead. Some of the witnesses testified the night was fairly clear, with a few light clouds passing slowly by; that there was-
no fog or other elements to darken the moonlit night. Some testified there was a light fog.”
The opinion then sets out testimony of witnesses for the appellees to the effect that the night was utterly dark from fog which rolled over the vicinity in heavy clouds, obscuring all objects, including lights; that fog was so dense a driver of an automobile could not see more than 30 to 60 feet ahead; that the light of an automobile would not shine on box cars on the crossing more than 30 feet away; that even the powerful headlight on a locomotive showed hut dimly through the fog. The court then proceeds with its statement of the facts shown:
“The approach to the crossing was over a straight, even and practically level highway for a distance of at least 900 feet. All the evidence in the case, from both interested and disinterested sources, shows conclusively that when the mortorcar entered into that 900-foot zone the train was already upon the crossing. According to their testimony, two bralcemen, riding on top of the train with their lighted lanterns in hand, saw the car as far away, possibly, as 1,400 feet, but by that time the. train was entering upon the crossing, and the car, approaching at the rate of 60 or 65 miles per hour, according to the brakemen, began to slow down when within 70 feet of -the crossing, but crashed into the fourth car from the engine. This testimony is corroborated by conclusive evidence that the motorcar skidded on locked brakes for about 60 .feet before striking the train. Further corroboration appears in the incident of a motortruck, approaching from the opposite direction, and crossing in front of the train just before the latter reached the crossing. The driver first slowed his truck down, as if to let the train pass ahead of him; then, apparently changing his mind, speeded up and crossed immediately in front of the train, meeting the ill-fated Ford about 40 feet beyond the crossing, according to his testimony. He further testified that the Ford was slowed down to about 17 miles per hour, for him to pass, and then speeded up, and on into the train.
“As it neared the train the Ford swerved over to' the left, striking the moving freight car just off the paved section of the highway. As a result of the impact, the Ford was impaled upon metal ■ parts of the freight car door, was dragged along with the train for 30 feet, its gas tank in the front end was ripped open, the escaping gas was ignited, the Ford and its occupants were enveloped in flames. The passengers were badly burned, and the Ford, a crumpled mass from the impact, was burned to a skeleton. Parts of the front of the Ford, including a part of the hood, the torn gas tank, and one of the doors, were so firmly impaled upon the freight car that they could not be removed, the next day, except by the use of a crowbar.”
Upon this state of the evidence we agree with the San Antonio Court of Appeals that reasonable minds cannot differ in the conclusion that the fatal collision in that case was due to the negligence of the driver of the automobile.
The undisputed evidence in the instant case shows there were no lights on the slowly moving cars on the crossing, and nothing there to give notice to the driver of the approaching automobile that the crossing was obstructed.
In this state Of the evidence we think that in moving its train of empty cars across the highway in the dark and foggy condition shown by plaintiff’s evidence, and without any warning to those using the highway that the crossing was obstructed, the jury was authorized • to find that appellee failed to use ordinary care for the safety of persons traveling along the highway, and should be held liable for injury thereby caused such users of the highway, regardless of the application of any statute prohibiting the obstruction of a public highway, if the driver of the automobile, as the evidence of plaintiff shows, had no notice of this careless obstruction of the highway by appellee and was using it with the care required of him, there is no liability on his part for the injury complained of by appellant.
The issue of' contributory negligence of the deceased is not raised by the evidence.
These conclusions require that the judgment be reversed and the cause remanded, and it has been so ordered.
Reversed and remanded.