The facts pleaded in the original petition and second amended one are substantially the same, and the same cause of action is plainly set up in both, for which reason there is no merit in the contention that the cause of action is barred by limitation; the original petition having been filed within the two-year period. Lumber Co. v. Water Co., 94 Tex. 462, 61 S.W. 707; Texas N. O. Ry. Co. v. Patterson Roberts, 192 S.W. 587; Exporters Traders Co. v. Wills, 204 S.W. 1056; Parlin Orndorff v. Glover, 45 Tex. Civ. App. 93, 99 S.W. 593; T. N. O. Ry. Co. v. McDonald, 56 Tex. Civ. App. 34, 120 S.W. 495; Wilks v. Kreis, 63 Tex. Civ. App. 527, 134 S.W. 838; Ripy v. Less, 55 Tex. Civ. App. 492, 118 S.W. 1085. The third assignment presented as a proposition is as follows:

Plaintiff's testimony was sufficient to raise the issue of discovered peril. Texas N. O. v. McDonald, 120 S.W. 494; Gulf, C. S. F. v. Miller, 35 Texas Civ. App. 116[ 35 Tex. Civ. App. 116]; Missouri, K. T. v. Sharp, 120 S.W. 264; Franklin Life Ins. Co. v. Villeneuve, 68 S.W. 203. Since under the uncontradicted evidence defendant's servants were operating the train along a public street in an incorporated town, and had sent for plaintiff and expected him to come from the mill on the south side of the track and cross to the north side to weigh the car of cake, they were charged with the duty of anticipating his presence on the track about or near the engine and cars, and if not (as we think they were) charged with the duty of keeping a lookout for him, certainly owed him the duty of giving the signal required by ordinance before moving the train.