Affirmed. See, also, 205 S.W. 731. E. E. Whitted, of Denver, Colo., Thompson, Barwise, Wharton Hiner, of Ft. Worth, and Turner Dooley, of Amarillo, for appellant.

The District Court was doubtful as to whether such a contract would be valid in the State of Illinois; citing Crane v. Railway Express Agency, Inc., 369 Ill. 110, 15 N.E.2d 866. In the State of Texas railroads are declared public highways, railroad companies common carriers, and as such prohibited from restricting their liability, and under the laws of Texas the contract of indemnity would have been invalid; citing Article 10, Sec. 2 of the Texas Constitution, Vernon's Ann.St., Articles 882, 883 and 6474 et seq., Vernon's Ann. Civil Statutes of Texas; 8 Texas Jur., § 64, pp. 118, 119; § 797 et seq., p. 1135 et seq.; Rowe v. Colorado S.R. Co., Tex.Civ. App., 205 S.W. 731. The District Court concluded that the contract violates the letter and spirit of the pertinent laws and decisions referred to, is contrary to public policy, and void, and entered judgment for the defendants. Code of Federal Regulations (1949), Title 49 — Transportation, Chapter 1 — I.C.C.

Under the circumstances detailed in subdivision 2, the failure `is sufficient to warrant a reasonable inference of recklessness, willfulness, or wantonness, and therefore to carry that issue to the jury,' but it is not recklessness, willfulness, or wantonness per se. Goodwin v. A.C.L.R. Co., 82 S.C. 321, 327, 64 S.E., 242; Rowe v. Southern R. Co., 85 S.C. 25, 66 S.E., 1056; Callison v. Charleston W.C.R. Co., 106 S.C. 123, 90 S.E., 260; Keel v. SeaboardA.L.R. Co., 108 S.C. 390, 95 S.E., 64; Miller v. A.C.L.R. Co., 140 S.C. 123, 138 S.E., 675; Key v. C. W.C.R. Co., 144 S.C. 164, 142 S.E., 336. "4.

A railway company is under a legal duty not to expose its employees to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection before such cars are admitted to its train. Baltimore Potomac Ry. Co. v. Mackey, 157 U.S., page 72, 39 Law, Ed., 624; Labatt on Master Servant, 1st Ed., Sec., 174; Rowe v. Railway Co., 205 S.W. 731; Texas Traction Co. v. Morrow, 145 S.W. 1069. The existence of a railway spike in a cross-tie protruding two or three inches above the surface of the tie in a railway yard constantly used by trainmen resulting in injury to a trainman makes it a question for the jury as to whether or not the existence and location of the same constitute negligence.

The facts in this respect were more readily available to it than to Thate. See Dessommes v. Dessommes, 505 S.W.2d 673, 679 (Tex.Civ.App. Dallas 1973, writ ref'd n. r. e.); Rowe v. Colorado Southern Railroad, 205 S.W. 731, 733-34 (Tex.Civ.App. Amarillo 1918, writ ref'd); 1 C. McCormick R. Ray, Texas Law of Evidence § 43, at 40 (Texas Practice 2d ed. 1956). The railroad should not be permitted to excuse the failure of its employee to obtain the information that a normal inspection could be expected to reveal by suggesting, without proof, that such an inspection might have revealed nothing because the indicators designed to give him this information might have been defective.

One of the recognized principles in determining the burden is to place it on the party having peculiar knowledge of the facts to be proved. W. A. Ryan Co. v. M.K. T. Ry., 65 Tex. 13 (1885); Beaumont, S.L. W. Ry. v. Myrick, 208 S.W. 935(Tex.Civ.App. — Beaumont 1919, writ dism'd); Rowe v. Colorado S.R., 205 S.W. 731 (Tex.Civ.App.-Amarillo 1918, writ ref'd); 9 J. Wigmore, Supra at 275; 1 C. McCormick R. Ray, Supra at 39. This principle is consistent with authorities holding that one who has innocently commingled another's goods or funds with his own does not gain anything by the commingling, but has the burden of establishing what portion is his. Wright v. Ellwood Ivins Tube Co., 128 F. 462 (C.C.E.D.Pa. 1904); Claflin v. Continental Jersey Works, 85 Ga. 27, 11 S.E. 721 (1890); In re Thompson, 164 Iowa 20, 145 N.W. 76 (1914).

[2] The law seems well settled that a railroad company owes substantially the same duty with regard to cars of another company used on its road as it does to its own cars. ( Baltimore P.R. Co. v. Mackey, 157 U.S. 72 [ 15 S.Ct. 491, 39 L.Ed. 624]; Rowe v. Colorado S.R. Co., (Tex.Civ.App.) 205 S.W. 731; Gaines v. Detroit, G.H. M. Ry. Co., 181 Mich. 376 [148 N.W. 397].) [1b] There was an issue as to control of the car at the time of an act of negligence, as contrasted with the time of the accident, but nothing in the foregoing instruction purports to resolve that conflict.

It has been frequently held that error in directing a verdict may be taken advantage of without an assignment of error. Hovey v. Sanders (Tex.Civ.App.) 174 S.W. 1025 (error refused); Palm v. Nunn (Tex. Civ. App.) 203 S.W. 1124 (error refused); Rowe v. Colorado S. R. Co. (Tex.Civ.App.) 205 S.W. 731; Business Men's Oil Co. v. Priddy (Tex. Civ. App.) 248 S.W. 408, error dismissed 114 Tex. 581, 278 S.W. 1114; Burton Rountree Co. v. Bailey Collins (Tex.Civ.App.) 270 S.W. 905. For the reasons stated, the judgment is reversed and the cause remanded.

To wrongfully withdraw a case from a jury on peremptory instruction has been held to be fundamental error. Rowe v. Railway Co. (Tex.Civ.App.) 205 S.W. 731; Palm v. Nunn (Tex.Civ.App.) 203 S.W. 1124; Walker v. Haley, 110 Tex. 50, 214 S.W. 295. And in passing upon such matters the evidence must be considered in the light most favorable to appellant, disregarding conflicts and contradictions.

His intention in the matter, if it was otherwise than as indicated by the physical facts, was peculiarly within his own mind, and under those circumstances we think the court was warranted in refusing to give any charge as to the burden of proof on the issue of abandonment. Blum v. Strong, 71 Tex. 322, 6 S.W. 167; Royal Neighbors v. Fletcher (Tex.Civ.App.) 230 S.W. 476; Rowe v. Ry. Co. (Tex.Civ.App.) 205 S.W. 731; White v. Dabney (Tex.Civ.App.) 46 S.W. 653; Stooksbury v. Swan, 85 Tex. 563, 22 S.W. 963; Kuehn v. Kuehn (Tex.Civ.App.) 259 S.W. 290. Complaint is made of the refusal of some other requested issues on the homestead defense which will not be discussed in detail, since all the material points to which they relate were fully and fairly covered in the court's charge to the jury.