GRATES, J.
In this cause pending here on appeal from the district court of Harris county, the appellees, the parents, were given a judgment against appellant as damages for the death of their 18 year old son, Shandor Kopinitseh, who was killed in a collision between one of appellant’s passenger trains and an automobile in which the boy was riding at the crossing of a dirt road over the railroad track in the country near the Mount Houston Station. The judgment followed findings of the jury, pursuant to proper pleadings raising that issue, to the effect that the fireman upon the engine of the train, after discovering and realizing the perilous position of the occupants of the automobile, failed to exercise ordinary care in either warning or notifying the engineer, so that the latter might either have sounded the whistle as a warning of the approach of the train, or have stopped it, in time to have prevented the accident.
The legal sufficiency of the evidence in the case to raise for the jury the issue of discovered peril having been a matter of debate among the members of this court in this and other cases (see T. & N. O. Ry. Co. v. Wagner, 262 S. W. 902), we heretofore, deeming that question the major one here, on February 21, 1924, under a full statement of the evidence in the record affecting the matter, certified it to the Supreme Court for its determination. That court by its judgment and opinion, copy of which was filed in this court on March 30, 1925, answered that the evidence did raise that issue for the jury. See 268 S. W. 923.
Since the receipt in this court of the Supreme Court’s judgment upon the certified question^ we have again examined the record and statement of facts upon the other questions raised by the railway company upon its appeal, and have concluded and so find, without a restatement of the testimony, that the finding of the jury upon the question of discovered peril is not so against the weight and preponderance of the evidence as to confer upon this court the authority to set it aside.
The binding effect upon us of the Supreme Court’s answer to the certified question, together with this last-stated conclusion of our own, requires an affirmance of the judgment unless there was reversible error in other respects. <
The further contentions made are: (1) That appellant’s special charge No. 3 should have been given; (2) that the court erred in its charge upon the burden of proof; (3) that special issues 1, 3, 4, and 5, as framed,, were upon the weight of the evidence; (4) that the court’s charge as a whole was not such a fair and impartial presentation of the issues involved as the law requires. Disposing of these presentments in the order urged, we think none of them involve reversible error.
Special charge No. 3, requested by appellant, was as follows:
“In connection with special issues submitted to you by the court, you are instructed that the operatives of a train approaching a crossing have a right to presume that a party approaching the track in an automobile will not attempt to cross the track in front of a moving train, and they are under no obligations to give any additional warnings, unless it reasonably appears to them that the party or parties approaching said crossing will not stop,.but will attempt to pass in front of the moving train.”
The trouble with this instruction, as sought to be applied here, is that it ignores the essential fact element of whether or not those in the automobile were aware of the approach of the train in the face of evidence strongly tending toward if not compelling a .finding that they were not, thereby in effect telling the jury, either that the fireman (the only trainman who saw the automobile before the collision) had a right to assume that they were so aware, or that it made no difference in his duty whether they appeared to him so to be or not, and that he was thereafter under no obligation to give them any warning, unless it reasonably appeared to him that they did not intend to stop, but would attempt to pass in front of the moving train; this, despite uncontrovert-ed testimony^, from,the fireman himself to the effect that, when about one-fourth of a mile short of the crossing — after the engineer had whistled some 320 feet further back — -he saw the automobile turn around at a distance of about 60 feet away and start towards the crossing, observing it continuously thereafter so approaching until it got upon the railroad track without either diminishing its speed, changing the driving, or making any noticeable effort to stop.
That such is not the law; that the trial court would not in the circumstances have been justified in instructing the jury that the enginemen had a right to indulge in such a presumption; and that the whole issue-as to the quality of their conduct was one of fact for the jury — we think is directly held by the Supreme Court upon the certificate sent up in this ease. Railway v. Kopinitsch, 268 S. W. 923, and authorities there cited. See, also, Hines v. Popino (Tex. Civ. App.) 235 S. W. 1097, and Stooksbury v. Swan, 22 S. W. 963, 855 Tex. 563.
Neither can we hold the charge upon the burden of proof prejudicial. Plainly, we think it told the jury that the burden was upon the appellees of establishing every issue except that of contributory negligence, and that, as to the latter, it was upon appellant. These matters of offense and defense were embodied in separate ones of the enumerated special issues as given, and, when they were read in connection with the court’s definition- of contributory negligence and its explanations concerning the burden of proof in general, elsewhere appearing, it seems clear that the jury could not have ■understood otherwise; hence it was not indispensable that appellant’s requested charge pointing the same thing out in the special issues by number be given.
Special issues 1, 3, 4, and 5, complained of, were as follows:
No. 1. “Were the agents of defendant, operating the engine pulling the train which struck and collided with the automobile, under all the facts and circumstances before you, guilty of negligence, as that term has been herein defined, in the rate of speed at which they were running said train, as they approached and crossed over the crossing in question? You will answer ‘Yes’ or ‘No’ according as you may find the facts to be.”
No. 3. “Did the fireman upon such engine discover and realize the perilous and dangerous situation, if any, of the occupants of said automobile, in such time that he could, in the exercise of ordinary care, have given warning to the engineer, so that the engineer in the exer
cise of the same degree of care, by the sounding of the whistle given warning of the approach of the train in time so as to have avoided killing the deceased? Answer ‘Yes’ or ‘No’ as you find the facts to be.” '
No. 4. “Did the fireman actually discover the perilous position of the occupants of the automobile in time, by the exercise of ordinary care, to have notified the engineer, so that the engineer, by the exercise of ordinary care with all the means at his command, consistent with the safety of the train and its passengers, could have stopped the train in time to prevent the injury? Answer ‘Yes’ or ‘No’ as you find the facts to be.”
No. 5.
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GRATES, J.
In this cause pending here on appeal from the district court of Harris county, the appellees, the parents, were given a judgment against appellant as damages for the death of their 18 year old son, Shandor Kopinitseh, who was killed in a collision between one of appellant’s passenger trains and an automobile in which the boy was riding at the crossing of a dirt road over the railroad track in the country near the Mount Houston Station. The judgment followed findings of the jury, pursuant to proper pleadings raising that issue, to the effect that the fireman upon the engine of the train, after discovering and realizing the perilous position of the occupants of the automobile, failed to exercise ordinary care in either warning or notifying the engineer, so that the latter might either have sounded the whistle as a warning of the approach of the train, or have stopped it, in time to have prevented the accident.
The legal sufficiency of the evidence in the case to raise for the jury the issue of discovered peril having been a matter of debate among the members of this court in this and other cases (see T. & N. O. Ry. Co. v. Wagner, 262 S. W. 902), we heretofore, deeming that question the major one here, on February 21, 1924, under a full statement of the evidence in the record affecting the matter, certified it to the Supreme Court for its determination. That court by its judgment and opinion, copy of which was filed in this court on March 30, 1925, answered that the evidence did raise that issue for the jury. See 268 S. W. 923.
Since the receipt in this court of the Supreme Court’s judgment upon the certified question^ we have again examined the record and statement of facts upon the other questions raised by the railway company upon its appeal, and have concluded and so find, without a restatement of the testimony, that the finding of the jury upon the question of discovered peril is not so against the weight and preponderance of the evidence as to confer upon this court the authority to set it aside.
The binding effect upon us of the Supreme Court’s answer to the certified question, together with this last-stated conclusion of our own, requires an affirmance of the judgment unless there was reversible error in other respects. <
The further contentions made are: (1) That appellant’s special charge No. 3 should have been given; (2) that the court erred in its charge upon the burden of proof; (3) that special issues 1, 3, 4, and 5, as framed,, were upon the weight of the evidence; (4) that the court’s charge as a whole was not such a fair and impartial presentation of the issues involved as the law requires. Disposing of these presentments in the order urged, we think none of them involve reversible error.
Special charge No. 3, requested by appellant, was as follows:
“In connection with special issues submitted to you by the court, you are instructed that the operatives of a train approaching a crossing have a right to presume that a party approaching the track in an automobile will not attempt to cross the track in front of a moving train, and they are under no obligations to give any additional warnings, unless it reasonably appears to them that the party or parties approaching said crossing will not stop,.but will attempt to pass in front of the moving train.”
The trouble with this instruction, as sought to be applied here, is that it ignores the essential fact element of whether or not those in the automobile were aware of the approach of the train in the face of evidence strongly tending toward if not compelling a .finding that they were not, thereby in effect telling the jury, either that the fireman (the only trainman who saw the automobile before the collision) had a right to assume that they were so aware, or that it made no difference in his duty whether they appeared to him so to be or not, and that he was thereafter under no obligation to give them any warning, unless it reasonably appeared to him that they did not intend to stop, but would attempt to pass in front of the moving train; this, despite uncontrovert-ed testimony^, from,the fireman himself to the effect that, when about one-fourth of a mile short of the crossing — after the engineer had whistled some 320 feet further back — -he saw the automobile turn around at a distance of about 60 feet away and start towards the crossing, observing it continuously thereafter so approaching until it got upon the railroad track without either diminishing its speed, changing the driving, or making any noticeable effort to stop.
That such is not the law; that the trial court would not in the circumstances have been justified in instructing the jury that the enginemen had a right to indulge in such a presumption; and that the whole issue-as to the quality of their conduct was one of fact for the jury — we think is directly held by the Supreme Court upon the certificate sent up in this ease. Railway v. Kopinitsch, 268 S. W. 923, and authorities there cited. See, also, Hines v. Popino (Tex. Civ. App.) 235 S. W. 1097, and Stooksbury v. Swan, 22 S. W. 963, 855 Tex. 563.
Neither can we hold the charge upon the burden of proof prejudicial. Plainly, we think it told the jury that the burden was upon the appellees of establishing every issue except that of contributory negligence, and that, as to the latter, it was upon appellant. These matters of offense and defense were embodied in separate ones of the enumerated special issues as given, and, when they were read in connection with the court’s definition- of contributory negligence and its explanations concerning the burden of proof in general, elsewhere appearing, it seems clear that the jury could not have ■understood otherwise; hence it was not indispensable that appellant’s requested charge pointing the same thing out in the special issues by number be given.
Special issues 1, 3, 4, and 5, complained of, were as follows:
No. 1. “Were the agents of defendant, operating the engine pulling the train which struck and collided with the automobile, under all the facts and circumstances before you, guilty of negligence, as that term has been herein defined, in the rate of speed at which they were running said train, as they approached and crossed over the crossing in question? You will answer ‘Yes’ or ‘No’ according as you may find the facts to be.”
No. 3. “Did the fireman upon such engine discover and realize the perilous and dangerous situation, if any, of the occupants of said automobile, in such time that he could, in the exercise of ordinary care, have given warning to the engineer, so that the engineer in the exer
cise of the same degree of care, by the sounding of the whistle given warning of the approach of the train in time so as to have avoided killing the deceased? Answer ‘Yes’ or ‘No’ as you find the facts to be.” '
No. 4. “Did the fireman actually discover the perilous position of the occupants of the automobile in time, by the exercise of ordinary care, to have notified the engineer, so that the engineer, by the exercise of ordinary care with all the means at his command, consistent with the safety of the train and its passengers, could have stopped the train in time to prevent the injury? Answer ‘Yes’ or ‘No’ as you find the facts to be.”
No. 5. “Did deceased, Shandor Kopinitsch, do any act that an ordinarily prudent person would not have done, or fail to do any act that an ordinarily prudent person would have done, under all the facts and circumstances, as the automobile approached and undertook to make the crossing, which contributed to his injury and death? You will answer ‘Yes’ or ‘No’ according as you find the facts to be.”
It is ai’gued that those issues are upon the weight of the evidence; No. 1 as stressing the rate of speed of the train, No. S as pointedly directing the jury’s attention “to the statement of Mitchell, that, when he was within 30' or 40 feet of the track if there was a train approaching, he expected it to give him additional warning,” No. 4, as indicating to the jury what the court thought of the testimony of Runnels, and No. 5 as “reasonably calculated to impress upon the jury that, in the opinion of the trial court, the deceased would have to do or fail to do some affirmative act, and that the negligence of the driver, Mitchell, could not be imputed to the deceased.”
These objections do not seem to us to be well taken. We construe No. 1 as merely inquiring if appellant was negligent in the rate of speed at which it was running the train, without indicating whether th@ court thought it was slow or fast, No. 3 as simply submitting a particular theory of discovered peril raised by the pleadings and evidence, without pointing to anybody’s testimony at all, No. 4 as only asking whether the peril of those in the automobile was discovered by the fireman in time for the train to have been stopped and the injury prevented by the exercise of ordinary care upon his part and that of the engineer, without directing attention to or indicating what the court thought of the testimony of Runnels or any other witness, and No. 5 as submitting the issue of contributory negligence on the part of Shandor Kopinitsch in general terms, without referring to, commenting upon, or stressing the weight of, any testimony or evidence before the jury. If this be a correct appraisement of the nature and purport of these questions, then upon well-settled authority they were not improper.
The concluding attack upon the charge in its entirety is based upon the fact that the court originally adopted a charge prepared by appellee’s attorneys as its own for the purpose of submitting one as coming from the court to appellant’s attorneys for objection and correction. No good reason is suggested for holding that procedure improper or prejudicial, since the court is entitled to call upon attorneys for both sides to aid it in preparing the charge, and may adopt the one it deems correct, whether submitted by the one or the other.
It follows from these conclusions that in our opinion the judgment of the court below should be affirmed. That order will accordingly be entered.
Affirmed.