This аction was brought by appellants, W. C. Blasdell and V. A. Petrie, for the *249 recovery from appellee, Port Terminal Railroad Association, of damages for personal injuries and damages to appellant Blasdell’s automobile alleged to have been sustained as a result of the negligence of employees of appellee in the operation of its train, which caused a collision between the automobile being driven by Blasdell and appellee’s locomotive at the Federal Highway crossing of the Port Terminal railway tracks on the North Side of Buffalo Bayou in the City of Houston.
Appellee alleged that on the occasion in question appellants had failed to use that degree of care that a person of ordinary prudence would have used under similar circumstances and that such failure proximately oaused the injuries and damages complained of.
In answer to special issues submitted, the jury found in substance that the engineer operating appellee’s train blew the whistle and rang the bell on said locomotive as it approached the crossing within, a reasonable distance therefrom and that he kept a proper lookout for persons who might be reasonably expected to be traveling on said highway. It found that said train,wаs not being operated at a greater rate of speed than a reasonably prudent person whould have operated it and that said employees did not fail to keep the .engine under proper control. The jury also •found that appеllant William C. Blasdeil had failed to keep a proper lookout for trains using said crossing, and that appellant William C. Blasdell had failed to have his automobile under proper control; and that such failure was the proximate cause of the collisiоn in question.
Judgment was rendered that appellants take nothing by their suit and that appellee recover all costs by it expended.
Appellants rely for reversal largely on their first eight points of assigned'error, in which they complain of the refusal of the trial сourt to. submit their seven requested issues on discovered peril, and, since the rule is well established by the ■courts of this State that a jury finding for plaintiff on issues of discovered peril renders issues of primary and contributory negligence immaterial, Dallas Ry. & Terminal Co. v. Bankston, Supreme Court,
Appellants were on their way from their ■homes to- the Sheffield Steel Mill, their place of employment, ■ approximately 4 miles from their homes, at the time of the accident. ■ Federal Highway crosses appel-lee’s tracks, at a slight angle about half a mile from the Sheffield Steel Mill. Appel-lee’s locomotive was moving backward on said tracks, pulling 25 empty tank cars. Its tender, which was abоut 33 feet long, was in front of the engine as it approached the crossing, placing the engineer’s station at between 45 and 50 feet from the end of the tender.
There was some fog, but the visibility was good and objects' could be seen for approximately a quаrter of a mile on each side of the crossing at the time of the collision.
Federal Highway is straight for approximately a mile on each side of the crossing and the railroad tracks are on approximately. the same level as the highway.
Appеllants testified that they left .their homes at, approximately 20 minutes before 8 o’clock on the morning in question. They were due at their place of employment ,at 8 o’clock. The collision occurred at about 7:58 A.M. They were traveling at the rate of about 25 miles per hour as they approached the crossing. '
It is undisputed that several automobiles had stopped just before, reaching the railroad tracks and that appellants’ automobile passed to the, left-hand side of the stationary automоbiles and that upon approaching the tracks it made a right-hand turn across the paved part of the highway and struck that part of the engine and tender where they were .coupled. At the time the collision occurred the end of the tender had reaсhed the middle lane of the highway over the railroad crossing. The train was moving at between 4 and 5 miles per hour.
Appellee’s engineer testified that he began to sound the whistle and to ring the bell of the locomotive whan he was some 800 feet from the crossing and that he *250 continued to do so until just before the collision. The engineer testified that “when I stopped blowing the whistle I saw this man coming at a speed that I didn’t figure he would stop. I stopped blowing the whistle, shut the throttle off and then the oar seemed to gain speed to me until hе hit the engine. ' I. was busy stopping the engine and the train by putting the automatic brake valve in emergency position.” He testified that at the time of the collision the bell was ringing and that the headlights on the locomotive and tender were burning.
It has been uniformly held by the courts оf this State that where a person iln possession of his faculties steps or drives immediately in front of a moving train, the approach of which is unobstructed from his view, and which could have been seen and heard by him by the use of his ordinary faculties, or by taking the necessаry precautions, he is guilty of contributory negligence as a matter of .law when he fails to use his ordinary faculties, and, as a result thereof, is injured. Aranda v. Texas & N. O. R. Co., Tex.Civ.App.,
Under a similar state of facts, this court held, in the case of Aranda v. Texas & N. O. R. Co., supra, that the doctrine оf discovered peril did not apply unless it was shown that, the agents and employees of the railway company actually discovered that appellants were in a position of peril and realized not only their danger, but that they could not or would not еxtricate themselves therefrom, at a time when the employees of the railroad in the exercise of ordinary care in the use of the means at hand, consistent with their safety and that of their train, could have avoided the collision. Citing Galveston, H. & H. R. Co. v. Sloman, Tex.Civ.App.,
In the case, of Houston & T. C. Ry. Co. v. O’Donnell, Supreme Court,
While the facts in the instant case are not identical "with those in the O’Donnell case, the questions presented in the two cases are similar in all material respects. Under the rule announced in the *251 'O’Donnell 'case, appellee’s еmployees in •charge of the engine in this case had the right to assume that appellants would stop their car before they reached the railroad crossing and that they would not allow it to strike appellee’s train, since it would be dangerous and negligеnt for them to do so. As stated by the Court in the O’Donnell case, the engineer in charge of ap-pellee’s train was not required to assume that appellants, who could have stopped their car before they reached the railroad track without injury to themselves, would negligently place themselves in a position ■of danger by driving onto said railroad tracks and colliding with appellee’s train. It is equally true that a jury could not properly find that' the engineer in charge of the train knew that appellant would do so in the absence of proof of knowledge.
The following authorities are in accord with the rule announced in the O’Donnell case, supra. Fort Worth & D. C. Ry. Co. v. Shetter,
In the late case of Thompson v. Sisti, Tex.Civ.App.,
In the case of Texas & N. O. R. Co. v. Grace, Tex.Civ.App.,
In the case of Missouri-Kansas-Tcxas Ry. Co. v. Cunningham,
Decisions from other jurisdictions dealing with the submission of special issues involving the doctrine of discovered peril, with few exceptions, follow substantially the same line of reasoning adopted by the courts of this State.
In the case of Caplan v. Arndt,
In the case of Fort Worth & D. C. Ry. Co. v. Shetter,
In the instant oase the trial court who heard the testimony from the various witnesses in refusing to submit the issue of discovered peril, -corrеctly held, we think, that there was not sufficient evidence that the engineer in charge of ap-pellee’s train realized that -appellants would not avail themselves of the opportunity open to them of preventing injury to themselves by stopping their car.
It follows that the. judgment of the trial court must be in all things affirmed.
Affirmed.