HENRY, Associate Justice.
The petition charges that heretofore, to-wit, on the 29th day of August, A. D. 1888, and prior and subsequent thereto, defendant, as a common carrier of freight and passengers, was engaged in running and operating coaches, passenger and freight trains, drawn by locomotives, operated and propelled by steam, on and along Avenue A, in the city and county of Galveston, and across Twenty-seventh Street in said city, and at and upon the said Twenty-seventh Street on said Avenue A and the intersection of said streets in said city, the said Avenue A and Twenty-seventh Street and the crossing and intersection thereof being a public street and thoroughfare in constant and daily use by the public, and one of the most generally used streets in said city, the same being within the corporate limits thereof; that on the day and date last aforesaid, while plaintiff was engaged in the lawful pursuit of his business, and while in so doing he was walking along the said public street and said highway, to-wit, Twenty-seventh and across said Avenue A and the crossing thereof, and while upon the crossing at intersection of said public streets, he was run down or run into and struck with great force by one of the locomotives of said defendant drawing a train of cars at great speed on said Avenue A and across said Twenty-seventh Street, greatly wounding and bruising him, and injuring plaintiff, and so crippling him as to render him sick and weak for the remainder of his life; "that the front of said engine struck plaintiff on the back and right side, and on the back of his head and neck, and so bruising his head and body, and so injuring his spine, and so shocking his nervous system, and so bruising his back and whole body as to seriously affect his back, his spine, right side, head, and neck, as not only to weaken his whole body and destroy his physical health, but also to greatly affect and impair his mind, and cause him great distress, physical and mental anguish, and to such an extent as to prevent his doing any work or pursuing his avocation, that of a cotton screwman and stevedore, or to attend to any business whatever; that plaintiff at the time of said injury was about forty-four years of age, a strong and able bodied man, and had been so for years prior thereto, and for many years had been steadily employed and earning the sum of one hundred dollars per month, by which he was enabled to support himself and family, consisting of a wife and five children; that since the said injury plaintiff has been incapable of earning anything or doing any work whatever, and is a cripple for life, and will be a sufferer the balance of his life; [250]*250that the ordinances of the city of Galveston, and especially and particularly section 3, article 3, of the Revised Ordinances of the City of Galveston, provide that it shall be unlawful to run a steam engine or any railroad within its city limits at a greater speed than four miles per hour. Plaintiff avers that on the day and date last aforesaid persons approaching or crossing the said Avenue A on Twenty-seventh Street were prevented from seeing whether locomotives or trains were approaching from the west by reason of the fact that a long line of freight cars were kept standing on a side track parallel with and within a few feet of the main track, and the one upon which plaintiff was struck. Plaintiff avers that notwithstanding the premises aforesaid, and notwithstanding the law of the State of Texas in reference to a warning bell or whistle, and notwithstanding the ordinances of the city of Galveston, on the said day and date the said defendant, without warning or notice by bell or whistle, or any other mode or manner, with great force and violence, and at great speed, to-wit, the rate of twenty miles per hour or more, without having a competent flagman to give notice of approaching trains, as required by law, and as was the custom of defendants, ran into and upon and ran down plaintiff, no opportunity having been given him of escaping, injuring him as aforesaid, all of which occurred without fault or negligence on the part of the plaintiff, but through the negligence, carelessness, and unlawful and improper conduct of said defendant, its servants, and its agents.
The defendant answered by a general denial, and alleged specially that the plaintiff, had he looked or listened for the approaching train, which he could have done, would have discovered the same in time to have avoided the accident; and further, that the plaintiff was not struck on the crossing at the intersection of Avenue A and Twenty-seventh Street, but that he was struck some distance east of Twenty-seventh Street crossing, while carelessly and negligently walking on the trestle work, or bridge, upon which the railroad track was constructed, and which was not intended to be used for the purpose of foot travel, and that he failed to exercise any care to learn of the approaching train.
The case was tried before a jury, and there was a verdict and a judgment in favor of plaintiff for $6000. It is complained that the court erred in the following particulars:
“ 1. In refusing to submit to the jury the first and second special issues requested by the defendant, which were as follows: (1) Could the plaintiff by looking westward before he went upon the railroad track have seen the approaching train in time to have avoided his injury? (2) If, immediately before he stepped on the railroad track upon which he was struck by the engine, the plaintiff had looked to the westward, would he have seen the approaching train in time to have remained off the track and avoided the accident?
“ 2. In refusing to give the fourth special charge requested by .the [251]*251defendant, which is as follows: (4) You are charged that no matter how negligent the defendant or its employes may have been, that nevertheless if you find from the evidence that the plaintiff Anderson failed to use his senses of sight and hearing to discover the approaching train, and that if he had looked for the train he could and would have seen the same in time to avoid the injury, you will find for defendant.
“3. In not in some form charging the jury that it was the plaintiff’s duty to use care and prudence to discover the approaching train before going on the railroad track, and in not charging the jury that it was the plaintiff’s duty to look for the approaching train from the west before going on the railroad track, and if by the exercise of such precaution he could have discovered the train in time to have avoided the accident, he could not recover.”
In the case of Houston & Texas Central Railway v. Wilson this court said: “Our statute does not require persons approaching a public crossing on a railroad to stop and listen and look out for approaching trains; therefore it would be incorrect for the court to instruct the jury that a failure to do so would constitute negligence. Whether a failure to do so would or would not constitute negligence is a question of fact to be determined by the jury from the facts and circumstances of each particular case.” 60 Texas, 143, 144.
In the case of Texas & Pacific Railway Company v. Chapman, 57 Texas, 82, it was said on this subject: “In the seventh instruction refused the court was asked to tell the jury to find for defendant if plaintiff on approaching the crossing did not look for approaching trains, and that if he had done so the injury would not have occurred. There is no statutory rule or fi-xed rule of law prescribing exactly what a party must do who approaches a railroad crossing.
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HENRY, Associate Justice.
The petition charges that heretofore, to-wit, on the 29th day of August, A. D. 1888, and prior and subsequent thereto, defendant, as a common carrier of freight and passengers, was engaged in running and operating coaches, passenger and freight trains, drawn by locomotives, operated and propelled by steam, on and along Avenue A, in the city and county of Galveston, and across Twenty-seventh Street in said city, and at and upon the said Twenty-seventh Street on said Avenue A and the intersection of said streets in said city, the said Avenue A and Twenty-seventh Street and the crossing and intersection thereof being a public street and thoroughfare in constant and daily use by the public, and one of the most generally used streets in said city, the same being within the corporate limits thereof; that on the day and date last aforesaid, while plaintiff was engaged in the lawful pursuit of his business, and while in so doing he was walking along the said public street and said highway, to-wit, Twenty-seventh and across said Avenue A and the crossing thereof, and while upon the crossing at intersection of said public streets, he was run down or run into and struck with great force by one of the locomotives of said defendant drawing a train of cars at great speed on said Avenue A and across said Twenty-seventh Street, greatly wounding and bruising him, and injuring plaintiff, and so crippling him as to render him sick and weak for the remainder of his life; "that the front of said engine struck plaintiff on the back and right side, and on the back of his head and neck, and so bruising his head and body, and so injuring his spine, and so shocking his nervous system, and so bruising his back and whole body as to seriously affect his back, his spine, right side, head, and neck, as not only to weaken his whole body and destroy his physical health, but also to greatly affect and impair his mind, and cause him great distress, physical and mental anguish, and to such an extent as to prevent his doing any work or pursuing his avocation, that of a cotton screwman and stevedore, or to attend to any business whatever; that plaintiff at the time of said injury was about forty-four years of age, a strong and able bodied man, and had been so for years prior thereto, and for many years had been steadily employed and earning the sum of one hundred dollars per month, by which he was enabled to support himself and family, consisting of a wife and five children; that since the said injury plaintiff has been incapable of earning anything or doing any work whatever, and is a cripple for life, and will be a sufferer the balance of his life; [250]*250that the ordinances of the city of Galveston, and especially and particularly section 3, article 3, of the Revised Ordinances of the City of Galveston, provide that it shall be unlawful to run a steam engine or any railroad within its city limits at a greater speed than four miles per hour. Plaintiff avers that on the day and date last aforesaid persons approaching or crossing the said Avenue A on Twenty-seventh Street were prevented from seeing whether locomotives or trains were approaching from the west by reason of the fact that a long line of freight cars were kept standing on a side track parallel with and within a few feet of the main track, and the one upon which plaintiff was struck. Plaintiff avers that notwithstanding the premises aforesaid, and notwithstanding the law of the State of Texas in reference to a warning bell or whistle, and notwithstanding the ordinances of the city of Galveston, on the said day and date the said defendant, without warning or notice by bell or whistle, or any other mode or manner, with great force and violence, and at great speed, to-wit, the rate of twenty miles per hour or more, without having a competent flagman to give notice of approaching trains, as required by law, and as was the custom of defendants, ran into and upon and ran down plaintiff, no opportunity having been given him of escaping, injuring him as aforesaid, all of which occurred without fault or negligence on the part of the plaintiff, but through the negligence, carelessness, and unlawful and improper conduct of said defendant, its servants, and its agents.
The defendant answered by a general denial, and alleged specially that the plaintiff, had he looked or listened for the approaching train, which he could have done, would have discovered the same in time to have avoided the accident; and further, that the plaintiff was not struck on the crossing at the intersection of Avenue A and Twenty-seventh Street, but that he was struck some distance east of Twenty-seventh Street crossing, while carelessly and negligently walking on the trestle work, or bridge, upon which the railroad track was constructed, and which was not intended to be used for the purpose of foot travel, and that he failed to exercise any care to learn of the approaching train.
The case was tried before a jury, and there was a verdict and a judgment in favor of plaintiff for $6000. It is complained that the court erred in the following particulars:
“ 1. In refusing to submit to the jury the first and second special issues requested by the defendant, which were as follows: (1) Could the plaintiff by looking westward before he went upon the railroad track have seen the approaching train in time to have avoided his injury? (2) If, immediately before he stepped on the railroad track upon which he was struck by the engine, the plaintiff had looked to the westward, would he have seen the approaching train in time to have remained off the track and avoided the accident?
“ 2. In refusing to give the fourth special charge requested by .the [251]*251defendant, which is as follows: (4) You are charged that no matter how negligent the defendant or its employes may have been, that nevertheless if you find from the evidence that the plaintiff Anderson failed to use his senses of sight and hearing to discover the approaching train, and that if he had looked for the train he could and would have seen the same in time to avoid the injury, you will find for defendant.
“3. In not in some form charging the jury that it was the plaintiff’s duty to use care and prudence to discover the approaching train before going on the railroad track, and in not charging the jury that it was the plaintiff’s duty to look for the approaching train from the west before going on the railroad track, and if by the exercise of such precaution he could have discovered the train in time to have avoided the accident, he could not recover.”
In the case of Houston & Texas Central Railway v. Wilson this court said: “Our statute does not require persons approaching a public crossing on a railroad to stop and listen and look out for approaching trains; therefore it would be incorrect for the court to instruct the jury that a failure to do so would constitute negligence. Whether a failure to do so would or would not constitute negligence is a question of fact to be determined by the jury from the facts and circumstances of each particular case.” 60 Texas, 143, 144.
In the case of Texas & Pacific Railway Company v. Chapman, 57 Texas, 82, it was said on this subject: “In the seventh instruction refused the court was asked to tell the jury to find for defendant if plaintiff on approaching the crossing did not look for approaching trains, and that if he had done so the injury would not have occurred. There is no statutory rule or fi-xed rule of law prescribing exactly what a party must do who approaches a railroad crossing. If aware of the fact he is held to use such precautions as a prudent man would resort to under similar circumstances. Attempts by the court to prescribe the exact thing to be done would be infringing on the province of the jury and charging on the weight of evidence.” Railway v. Lee, 70 Texas, 501.
The charges requested could not have been given consistently with these decisions. It would have been inconsistent, and equally improper, to have submitted the special issues requested.
Article 1331 of the Revised Statutes reads: “ The special verdict must find the facts as established by the evidence, and not the evidence by which they are established, and the findings must be such as that nothing remains for the court but to draw from such facts the conclusions of law.”
The court refused to charge the jury at the request of defendant: “If you find from the evidence that the plaintiff Anderson was not on the crossing or intersection of Twenty-seventh Street, but that he was walking up the trestle work or railroad track to the eastward of Twenty-seventh Street, on Avenue A, you will find for the defendant.”
[252]*252It is insisted that as the plaintiff’s petition charged that he was on the crossing of the street when he was injured this charge should have been given.
We recognize the truth of the proposition contended for, that “facts proved can not form the basis of a judgment unless alleged.”
While the plaintiff charged the injury occurred on the street crossing, the defendant alleged that it occurred while he was walking on the trestle work.
For the purposes of the rule now invoked facts proved should be supported by a pleading on the subject, but it is not material by which party the facts are pleaded. An omission by one party may be cured by the other.
The defendant pleaded that plaintiff’s injury was caused by his own contributory negligence, and that “if he had looked or listened for the approaching, train, which he could have done, he would have discovered the same in time to have avoided the accident.”
Plaintiff did not allege in his own pleadings that his view of the train hy which he was injured was obscured by smoke or steam, but lie testified as a witness to that effect. Upon that issue the court refused to give the following charge at the request of the defendant:
“ There being no allegations in the plaintiff’s pleadings that his view of the train which struck him was, before the time he was struck by the train, obscured by smoke or steam, you are charged that you can not take the evidence of the plaintiff as to smoke or steam into consideration in finding your verdict.”
What we have said with regard to the last preceding issue applies with •equal force to this. In response to the plea of contributory negligence it was proper for the plaintiff to make any proof negativing its existence.
It does not become necessary for us to decide upon whether the charge •should have been given if the question had depended entirely upon the state of plaintiff’s pleadings.
Appellant complains of the following charge given by the court to the jury:
“It is the duty of railway companies to ring the bell or blow a whistle at the distance of at least eighty rods from the place where such railway shall cross any street, and to keep ringing or blowing until it shall have •crossed such street or stopped.”
The charge is exactly in the language of article 4232 of the Revised Statutes as it read before it was amended by the Act of March 21, 1883. As amended the article reads: “The whistle shall be blown or the bell . rung at the distance of at least eighty rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until it shall have crossed such public road or stopped.”
We do not think the defendant could have been prejudiced by the [253]*253charge. The law required the defendant to keep its bell ringing; the court charged that it was required to do that or something else. Proof that it kept its bell ringing, as the law required, would have satisfied the charge. It would have been different if the charge had been that it was its duty to keep blowing or to keep ringing and blowing.
The following assignments of error are insisted upon:
“ The verdict of the jury is unsupported by the evidence, and is against the manifest weight and great preponderancé of the evidence in the following particulars:
“1. The evidence shows that the plaintiff was guilty of contributory •negligence.
“ 2. The evidence shows that if the plaintiff had used ordinary precautions, or had looked to the westward before going on the railroad track or afterwards, he would have seen the approaching train in time to have remained off the track, or got off the track, and avoided the accident.
“3. The evidence shows the plaintiff was negligently walking upon the trestle bridge, over a part of Galveston Bay to the eastward of Twenty-seventh Street crossing, without observing any care or caution to ascertain whether a train was approaching from behind.
“ 4. The evidence shows that as soon as the defendant’s employes discovered the' plaintiff on the track they used every effort to avoid or prevent the accident.
“The verdict of the jury, in view of the evidence and the'charge of the court that they could not find damages for permanent injury, is grossly excessive in amount, unsupported by the evidence, and shows that it was rendered through passion, sympathy, or prejudice, and not upon a fair and impartial consideration of the evidence upon the charge of the court."
While the evidence upon the issues here presented was, in some particulars, contradictory, and in others may not so clearly demonstrate the correctness of the result reached as is to be desired in all trials, we yet find the verdict sufficiently supported by the evidence to make it our duty under the rule uniformly declared in such cases to sustain the judgment, and it is therefore affirmed.
Affirmed.
Delivered February 18, 1890.