COLLINGS, Justice.
Edgar L. Meeks brought suit against the Texas and Pacific Railway Company to recover damages alleged to have been sustained by him in a railroad crossing collision. He alleged that the pickup which h¿ was driving struck the engine of a short freight train which defendant’s employees negligently caused to be operated on and across the highway in front of plaintiff’s approaching motor vehicle. The case was tried before a jury which found both plaintiff and defendant guilty of negligence proximately causing the collision. The jury, however, answered special issues on discovered peril adversely to the defendant, finding that just prior to the collision Meeks was in a position of peril, that one or more of defendant’s employees discovered Meeks’ perilous position, realized that Meeks would probably not extricate himself from such perilous position in time to avoid the accident, that appellant’s employee could have, by the use of the means at hand consistent with the safety of the train and its occupants, avoided the collision, and.- after making such discoveries-failed to use all such means to avoid the collision. Based upon the findings of discovered peril, judgment was entered for plaintiff in the sum of $38,000. The railway company has appealed.
In appellant’s first three points it is contended that the court erred in submitting issues concerning discovered peril to the jury because there was no evidence to warrant same, and in overruling his motion to set aside the answers to such issues and render judgment for appellant because such answers have no support in the evidence. In this connection appellant contends the evidence shows it was a physical impossibility for the train crew to have avoided the accident after its employee Dyer discovered that Meeks was about to hit the train.
An essential element in the establishment of liability under the doctrine of discovered peril is discovery of the perilous position -of the injured party in time to have avoided the accident and resulting injury. Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967; Texas & N. O. Ry. Co. v. Grace, 144 Tex. 71, 188 S.W. 2d 378; Texas & Pacific Ry. Co. v. Breadlow, 90 Tex. 26, 36 S.W. 410; Northern Texas Traction Co. v. Weed, Tex.Com.App., 300 S.W. 41.
We are of the opinion that the evidence viewed in its most favorable light to the verdict and the judgment does not show that the perilous position of Meeks was discovered by the employees of appellant in time to have avoided the accident. The accident occurred on a highway west of Big Spring at the point where it crosses the spur railway track leading to Webb Air Force Base. The highway has four lanes of traffic, each 11 feet in width. The two south lanes are for eastbound traffic and the two north lanes are for traffic going west. At the time of the accident, appel-lee was driving west along the highway in the inside and most southerly lane for westbound traffic. The evidence shows that [171]*171Meeks approached the spur track crossing at a speed of approximately 35 miles per hour and did not see the train until he was within 25 or 30 feet from it, which was too late for him to stop, and that he ran into the engine.
Appellant’s train, composed of an engine, an empty boxcar and a caboose, had been to Webb Air Force Base and was returning to Big Spring. The train was moving north with the engine pulling the train. When the train left the base, the engine foreman, Mr. J. L. Dyer, rode on the front of the engine for the purpose of observing traffic at crossings and giving stop and start signals to the engineer. It is upon his testimony and the surrounding facts and circumstances that appellee relies to show discovered peril. The evidence shows that the train stopped on a signal from Dyer when the engine approached the south edge of the highway crossing where the accident occurred. Then Dyer gave the engineer a signal to proceed and the train moved slowly northward until Dyer gave another stop signal to allow an eastbound automobile to pass. At that time, part of the train was in the main traveled portion of the highway, about 20 or 25 feet north from the first stop. At this second stop Mr. Dyer saw Meeks’ vehicle approaching from the east about a block away. He testified that he assumed Mr.- Meeks saw the train and that he gave the “go” signal and the train proceeded north over the crossing. The speed at which the train was moving at the time was estimated to be from two to three miles per hour. Mr. Dyer stated that he assumed Mr. Meeks would stop since the train was already on the highway completely over one crossing. When Dyer first saw Meeks approaching, about a block east of the crossing, he was not bound to anticipate that Meeks would continue and negligently collide with the train. Ft. Worth & Denver Ry. Co. v. Shetter, 94 Tex. 196, 59 S.W. 533; Panhandle & S. F. Ry. Co. v. Napier, 135 Tex. 314, 143 S.W.2d 754, 756.
Dyer further testified that he took his eyes off the Meeks’ vehicle momentarily and when he again looked toward the east-he saw the Meeks’ car within about 30 feet of the train. There is no testimony, or circumstance in evidence, indicating that Dyer discovered appellee’s perilous position before he was within 30 feet of the train. Since appellee was traveling at a speed of 35 miles per hour, the discovery by Dyer of appellee’s peril was less than one second before the collision. For the collision to have been avoided, it would have been necessary during that one second for Dyer to signal the engineer, for the engineer to react to the signal and apply the brakes, and for the brakes to stop the train before it came into the pathway of appellee’s approaching car. There was no evidence of probative force to the effect that the employees of appellant discovered Meeks’ perilous position in time to have avoided the collision. On the contrary, the evidence shows that when appellant’s employees discovered Meeks’ peril it was too late for them to have avoided the collision. The evidence, as a matter of law, did not raise the issue of discovered peril. Martin v. Texas & N. O. Ry. Co., Tex.Civ.App., 236 S.W.2d 567 (Writ Ref.).
■Mr. Dyer further testified that he gave what he called the “wash out” or stop signal-when he saw the Meeks’ car about 30 feet away and jumped to the left side of the engine from the right front side where he had been riding. Concerning the location of the engine at the time of the collision, Dyer testified that “we were over the west bound traffic side where they go west, when he hit us.” The engineer testified that the impact occurred a little in front of the cab where he was sitting. The cab is shown to be on the back part of the engine. The engine has an overall length of 44 feet and 5 inches. Appellee Meeks identified a picture of the engine and placed the point of impact at the front wheels and the picture shows visible marks on the large bar covering the front wheels. The evidence further shows that the back end of the bar covering the front wheels is 10 or 12 feet from the front end of the engine. The evi[172]*172dence is therefore undisputed that the point of collision on the engine was on the front wheels about 10 or 12 feet back from the front end of the engine. The fastest rate of speed attributed to the train by any witness was three miles per hour, or about four feet per second.
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COLLINGS, Justice.
Edgar L. Meeks brought suit against the Texas and Pacific Railway Company to recover damages alleged to have been sustained by him in a railroad crossing collision. He alleged that the pickup which h¿ was driving struck the engine of a short freight train which defendant’s employees negligently caused to be operated on and across the highway in front of plaintiff’s approaching motor vehicle. The case was tried before a jury which found both plaintiff and defendant guilty of negligence proximately causing the collision. The jury, however, answered special issues on discovered peril adversely to the defendant, finding that just prior to the collision Meeks was in a position of peril, that one or more of defendant’s employees discovered Meeks’ perilous position, realized that Meeks would probably not extricate himself from such perilous position in time to avoid the accident, that appellant’s employee could have, by the use of the means at hand consistent with the safety of the train and its occupants, avoided the collision, and.- after making such discoveries-failed to use all such means to avoid the collision. Based upon the findings of discovered peril, judgment was entered for plaintiff in the sum of $38,000. The railway company has appealed.
In appellant’s first three points it is contended that the court erred in submitting issues concerning discovered peril to the jury because there was no evidence to warrant same, and in overruling his motion to set aside the answers to such issues and render judgment for appellant because such answers have no support in the evidence. In this connection appellant contends the evidence shows it was a physical impossibility for the train crew to have avoided the accident after its employee Dyer discovered that Meeks was about to hit the train.
An essential element in the establishment of liability under the doctrine of discovered peril is discovery of the perilous position -of the injured party in time to have avoided the accident and resulting injury. Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967; Texas & N. O. Ry. Co. v. Grace, 144 Tex. 71, 188 S.W. 2d 378; Texas & Pacific Ry. Co. v. Breadlow, 90 Tex. 26, 36 S.W. 410; Northern Texas Traction Co. v. Weed, Tex.Com.App., 300 S.W. 41.
We are of the opinion that the evidence viewed in its most favorable light to the verdict and the judgment does not show that the perilous position of Meeks was discovered by the employees of appellant in time to have avoided the accident. The accident occurred on a highway west of Big Spring at the point where it crosses the spur railway track leading to Webb Air Force Base. The highway has four lanes of traffic, each 11 feet in width. The two south lanes are for eastbound traffic and the two north lanes are for traffic going west. At the time of the accident, appel-lee was driving west along the highway in the inside and most southerly lane for westbound traffic. The evidence shows that [171]*171Meeks approached the spur track crossing at a speed of approximately 35 miles per hour and did not see the train until he was within 25 or 30 feet from it, which was too late for him to stop, and that he ran into the engine.
Appellant’s train, composed of an engine, an empty boxcar and a caboose, had been to Webb Air Force Base and was returning to Big Spring. The train was moving north with the engine pulling the train. When the train left the base, the engine foreman, Mr. J. L. Dyer, rode on the front of the engine for the purpose of observing traffic at crossings and giving stop and start signals to the engineer. It is upon his testimony and the surrounding facts and circumstances that appellee relies to show discovered peril. The evidence shows that the train stopped on a signal from Dyer when the engine approached the south edge of the highway crossing where the accident occurred. Then Dyer gave the engineer a signal to proceed and the train moved slowly northward until Dyer gave another stop signal to allow an eastbound automobile to pass. At that time, part of the train was in the main traveled portion of the highway, about 20 or 25 feet north from the first stop. At this second stop Mr. Dyer saw Meeks’ vehicle approaching from the east about a block away. He testified that he assumed Mr.- Meeks saw the train and that he gave the “go” signal and the train proceeded north over the crossing. The speed at which the train was moving at the time was estimated to be from two to three miles per hour. Mr. Dyer stated that he assumed Mr. Meeks would stop since the train was already on the highway completely over one crossing. When Dyer first saw Meeks approaching, about a block east of the crossing, he was not bound to anticipate that Meeks would continue and negligently collide with the train. Ft. Worth & Denver Ry. Co. v. Shetter, 94 Tex. 196, 59 S.W. 533; Panhandle & S. F. Ry. Co. v. Napier, 135 Tex. 314, 143 S.W.2d 754, 756.
Dyer further testified that he took his eyes off the Meeks’ vehicle momentarily and when he again looked toward the east-he saw the Meeks’ car within about 30 feet of the train. There is no testimony, or circumstance in evidence, indicating that Dyer discovered appellee’s perilous position before he was within 30 feet of the train. Since appellee was traveling at a speed of 35 miles per hour, the discovery by Dyer of appellee’s peril was less than one second before the collision. For the collision to have been avoided, it would have been necessary during that one second for Dyer to signal the engineer, for the engineer to react to the signal and apply the brakes, and for the brakes to stop the train before it came into the pathway of appellee’s approaching car. There was no evidence of probative force to the effect that the employees of appellant discovered Meeks’ perilous position in time to have avoided the collision. On the contrary, the evidence shows that when appellant’s employees discovered Meeks’ peril it was too late for them to have avoided the collision. The evidence, as a matter of law, did not raise the issue of discovered peril. Martin v. Texas & N. O. Ry. Co., Tex.Civ.App., 236 S.W.2d 567 (Writ Ref.).
■Mr. Dyer further testified that he gave what he called the “wash out” or stop signal-when he saw the Meeks’ car about 30 feet away and jumped to the left side of the engine from the right front side where he had been riding. Concerning the location of the engine at the time of the collision, Dyer testified that “we were over the west bound traffic side where they go west, when he hit us.” The engineer testified that the impact occurred a little in front of the cab where he was sitting. The cab is shown to be on the back part of the engine. The engine has an overall length of 44 feet and 5 inches. Appellee Meeks identified a picture of the engine and placed the point of impact at the front wheels and the picture shows visible marks on the large bar covering the front wheels. The evidence further shows that the back end of the bar covering the front wheels is 10 or 12 feet from the front end of the engine. The evi[172]*172dence is therefore undisputed that the point of collision on the engine was on the front wheels about 10 or 12 feet back from the front end of the engine. The fastest rate of speed attributed to the train by any witness was three miles per hour, or about four feet per second. Since appellant’s engineer, Dyer, discovered the perilous position of Mr. Meeks less than a second before the collision, it is obvious that the engine traveled less than four feet between the time of discovery of the peril by Dyer and the time of the collision. The only reasonable conclusion that can be reached from the undisputed evidence is that the engine was already in the pathway of Meeks’ car when appellee’s employees discovered the peril and it was then too late to have avoided the collision by stopping the train. If the train had stopped at the exact instant that Dyer saw Meeks’ approaching vehicle the second time, the collision would still have occurred, and the train would have been struck by Meeks’ car at a point about six or eight feet back of the front end of the engine.
Since both appellant and appellee are guilty of negligence proximately causing the collision and there was no probative evidence raising a fact issue on the question of whether appellee’s perilous position was discovered by the employees of appellant in time for them to have avoided the collision, the court erred in not rendering judgment for appellant. It is not necessary for us to consider other points raised by appellant.
The judgment of the trial court is reversed and judgment is rendered for appellant.