f his danger, unless it knew that he was then on the track, because the place at which he was killed had been for years commonly and habitually used by the public as a walkway and public thoroughfare within the knowledge of the railway company and its servants who were then and there operating the train, and with the tacit consent of and without objection by the appellant; and the law made it the duty of such servants to keep a lookout for persons that might be expected to be on said track at said place, and to avoid injuring them. Railway v. Smith, 87 Tex. 359; Railway v. Crosnoe, 72 Tex. 79; Railway v. Schuster, 7 S.W. Rep., 874; Railway v. Hewitt, 67 Tex. 479 ; Railway v. Watkins, 88 Tex. 20; Railway v. Harvin, 54 S.W. Rep., 630; Railway v. Brooks, 54 S.W. Rep., 1056; Railway v. Woodward, 63 S.W. Rep., 1051; Railway v. Laskowski, 47 S.W. Rep., 59; Railway v. Crowder, 25 Texas Civ. App. 536[ 25 Tex. Civ. App. 536]; Railway v. Holland, 27 Texas Civ. App. 397[ 27 Tex. Civ. App. 397]; Railway v. Oslin, 26 Texas Civ. App. 370[ 26 Tex. Civ. App. 370]; Railway v. Keelin, 62 S.W. Rep., 261, and authorities cited; Shelby v. Railway, 3 S.W. Rep., 157; Cooper v. Railway, 11 Am. St. Rep., 484; Railway v. Boderner, 32 Am. St. Rep., 218; Lampkin v. McCormick, 83 Am. St. Rep., 245. The Court of Civil Appeals erred in applying the doctrine of discovered peril to the facts of this case, because the evidence abundantly shows that the place where deceased was struck and run over was one commonly and habitually used by the public for many years with the knowledge of and without objection by the railway company, and was a place where employes of the railway company in operating its trains could reasonably expect some person to be, and the duty rested upon such employes not only to avoid injuring a person in danger after the peril was discovered, but to use ordinary care before moving cars to discover such persons and avoid injuring them.
[Seventh assignment of error.] The court erred in the third paragraph of his charge, as follows: " 'Contributory negligence' is negligence which contributes toward causing the accident and without which the accident would not have happened." Missouri, K. T. Ry. Co. v. Oslin, 26 Texas Civ. App. 370[ 26 Tex. Civ. App. 370]. Proof that the telephone line which caused the injury was known as the "South Texas" is not sufficient to show that such line was placed in a public road by the South Texas Telephone Company, and to entitle the plaintiff to recover against the South Texas Telephone Company.
The court in the charge to the jury evolved the issue from the pleadings, and applied the facts in evidence, and charged the jury the law thereon, and there is no error in the court's charge. Western U. Tel. Co. v. Shaw, 90 S.W. 58; Fouts v. Ayers, 11 Texas Civ. App. 338[ 11 Tex. Civ. App. 338]; Maes v. Texas N. O. Ry., 23 S.W. 725; Ft. Worth Ry. v. Linthicum, 33 Texas Civ. App. 375[ 33 Tex. Civ. App. 375]; Missouri, K. T. Ry. v. Oslin, 26 Texas Civ. App. 370[ 26 Tex. Civ. App. 370]; Jones v. Western U. Tel. Co., 101 S.W. 809. FLY, ASSOCIATE JUSTICE. —
The evidence was relevant and material, and there was no error in admitting it. Wheeler v. Railway Co., 91 Tex. 356; Missouri K. T. Ry. Co. v. Zwiener, 38 S.W. Rep., 375; Gulf C. S. F. Ry. Co. v. Bell, 24 Texas Civ. App. 579[ 24 Tex. Civ. App. 579], 58 S.W. Rep., 618, 619-621; Missouri K. T. Ry. Co. v. Oslin, 26 Texas Civ. App. 370[ 26 Tex. Civ. App. 370], 63 S.W. Rep., 1043; Jackson v. Railway Co., 23 Texas Civ. App. 319[ 23 Tex. Civ. App. 319], 55 S.W. Rep., 376. 6.
The charge is subject to the criticism that it is upon the weight of the evidence in telling the jury that "the fact that she may have stepped in the wrong direction, thereby suddenly placing herself in peril, would not defeat her recovery." It assumes that the appellee was placed in a perilous position by the negligence of the defendant, and that appellee was thereby induced to step in the wrong direction. If, by the negligence of the railway company, appellee was, without her fault, placed in a position of peril, and as a resule thereof, in her effort to save her life, she started back across the track, the same would not necessarily amount to negligence on her part. Railway Co. v. Neff, 87 Tex. 303; Railway Co. v. Rogers, 91 Tex. 52; Railway Co. v. Oslin, 26 Texas Civ. App. 370[ 26 Tex. Civ. App. 370], 2 Texas Ct. Rep., 1035. The issues as to whether, under all the facts, plaintiff was guilty of negligence in failing to discover the approaching train, and if not, whether she was placed in a position of peril by the negligence of the defendant which proximately caused her injury, should have been clearly submitted to the jury in a proper charge.
The operatives of the train were not required to blow the whistle continuously from the whistling post until the train had passed over the crossing under Vernon's Annotated Civil Statutes, Art. 6371. Houston T.C. Ry. Co. v. O'Neal, 91 Tex. 671, 47 S.W. 95. Conditions of a crossing may be such as to require the giving of additional warning than is required by statute but the facts in this case do not bring it within those cases. See Missouri K. T. v. Oslin, 63 S.W. 1039 (wr. ref.); G.H. S.A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247. According to the proof the crossing where the accident occurred in this case is unobstructed and was not shown to be an extra hazardous one. There is no support in the evidence for the finding of the jury that the operatives of the train were negligent in failing to blow the whistle from the whistling post continuously until the crossing was approached. The evidence being insufficient to raise the issues of discovered peril and to support the only finding of primary negligence, there is no basis for the judgment rendered by the trial court and the Court of Civil Appeals against the railway company.
Appellant contends that there was no evidence, or not sufficient evidence to warrant the jury in finding that the engine whistle was not blown after the engine had passed the regular whistling post and before the engine had reached the crossing. Our contention is that the evidence abundantly establishes this fact and the jury was warranted in so finding. Missouri, K. T. Ry. Co. of Texas v. Oslin (Civ. App.), 63 S.W. 1039 (writ of error denied). Under the evidence in this case the trial judge properly submitted to the jury the issue as to the speed of the train and the issue as to whether or not such speed was negligence, and there was no error in the submission of such issue.
In such circumstances it was the duty of the engine crew and other employees of the railroad company to use ordinary care to provide for the safety of the plaintiff, Herbert Duncan, and to require the engine crew to use ordinary care to avoid striking the car the Duncan boy was unloading, St. Louis S.W. Ry. Co. v. Kennemore, 81 S.W. 802, writ refused, and such duty would include the giving of notice of an intention to move the car and such warning and signals as any ordinarily prudent person would give under the circumstances to warn him of the movement of cars which might in the circumstances affect him. Texas P. Ry. Co. v. Short, Tex. Civ. App. 58 S.W. 56; Galveston, H., S. A. Ry. Co. v. Pingenot, Tex. Civ. App. 142 S.W. 93, writ refused; Missouri, K. T. Ry. Co. v. Oslin, 26 Tex. Civ. App. 370, 63 S.W. 1039. All points predicated on the proposition the plaintiff, Herbert Duncan, was a trespasser and the company owed him no duty are overruled.
This evidence was objected to, and the Supreme Court says there was no error in overruling defendant's objection. In M. K. T. Ry. Co. of Texas v. Oslin (writ of error denied) 26 Tex. Civ. App. 370, 63 S.W. 1039, both the question of contributory negligence and circumstances surrounding the injury and remoteness of time as to conditions of the railroad at the crossing where the plaintiff was injured are discussed at length by the court. Justice Templeton, writing the opinion, says:
It falls within the rule, in cases of this character, that involuntary expressions of present pain or suffering which exclude the idea of premeditation or design are admissible. It does not appear that the expressions of the plaintiff were a narrative or statement of a past occurrence, but expressions of the pain he was then suffering. Our holding that the evidence was admissible is sustained, we think, by the following few of the many authorities upon the subject: Railway Company v. Boyer, 44 Tex. Civ. App. 311, 97 S.W. 1070; Railway Co. v. Shafer, 54 Tex. 641; Newman v. Dodson, 61 Tex. 91; Railway Co. v. Bell, 24 Tex. Civ. App. 579, 58 S.W. 621; Railway Co. v. Oslin, 26 Tex. Civ. App. 370, 63 S.W. 1039; Railway Co. v. Burke, 36 Tex. Civ. App. 222, 81 S.W. 774; Railway Co. v. Haynes (Civ.App.) 86 S.W. 934; Railway Co. v. Barron, 78 Tex. 421, 14 S.W. 698. Whether the expressions of pain, as detailed by the witness, were real or feigned, was for the jury to determine.