Gould, Associate Justice.

In attempting to cross the track and switch of the Galveston City Railroad with a loaded dray, Michael Nolan had his dray broken, and received personal injuries. This suit was brought to recover damages for these injuries, alleging that the defendant had negligently failed to keep their track in good repair, and on a level with *146the grade of the street, and had permitted their rails to become elevated above the grade of the street, by reason whereof the accident occurred. The trial resulted in a judgment in favor of Nolan for §1,300, and the case has been brought to this court by appeal.

Appellee moves to abate the suit on the ground that Nolan has died since the appeal was perfected. The statute directs that the death of a party to the record shall not abate causes pending in this court, “ but the court shall proceed to adjudicate such cause and render judgment therein as if all the parties thereto were still living, and such judgment shall have the same force and effect as if rendered in the lifetime of all the parties thereto; provided, however, that this act shall not apply to any suit or action in which the cause of action does not survive in favor of, or against the .legal representatives of a deceased person. R. S., 1044. In the case of Gibbs v. Belcher, 30 Tex., 79, this subject was discussed, and it was held that the original cause of action was merged in the judgment of the district court, and that such judgment was not vacated or opened by writ of error or appeal, but remained valid and subsisting until set aside, constituting in favor of the administrator a cause of action.

The manifest object of the statute is to allow litigation in the supreme court to proceed unaffected by the death of the parties, and the proviso, in the same spirit, hastens the termination in that court of useless litigation, but enacts no new forfeiture or loss of rights as the consequence of death. The proviso was designed not to vacate judgments, but to guard against the abuse of the statute by those whose right of recovery was dependent on the establishment of their original cause of action, and whose cause of action therefore did not survive.

If Nolan had failed to recover in the district court, and had thereupon brought the case to this court, his cause of action would still be that on which his suit was originally founded and would not survive his death. Having recovered a judgment, that judgment and the appeal or writ of error by which *147the defendant therein brings it to this court for revision, remain, we think, alike unaffected by the proviso.

We have seen that the alleged negligence of the railroad consisted in failing to keep their track in good repair and on a level with the grade of the street. Their contract with the city contained the following: “XII. Said party shall lay such a rail, and shall so construct the railroad, that they shall not impede carriage travel upon the streets occupied by said tracks, after said streets shall have been graded by the city.” “ XIII. Said party shall at all times keep the road-bed of said railroad in good repair, and shall keep said road-bed up to the level of the street. In no case shall said road be above or below the city grade of the street after said streets shall have been graded by the city.” In the case of City of Galveston v. Galveston City R. R. Co., 46 Tex., 435, these and other provisions of the contract were construed, and it was held that the railroad was under no obligation to fill up the streets beneath its track, so as to keep its road-bed on a level xvith the street on each side of the track, but that it was bound to conform and keep the level of the road-bed to that of the streets when graded.

The evidence is, that the grade of the streets had been established; that Market street, on which the railroad was, had been raised to the established grade; that the railroad had been conformed to that grade, and remained so conformed, and conformed to the actual surface of the street, except in places where the street had worn down below the established grade. This wearing away had occasioned holes and irregularities in the street, and in such places the track and rails were above the surface of that part of the street, though still on the level of the established grade, up to which the city undertook to keep the street. In our opinion the railroad company incurred no liability merely by keeping their road-bed and rails at the level of the established grade, and failing to conform to irregularities in the street. Their liability must grow out of some failure to comply with their obligations, and not out of com*148pliance. Hence, if liable in this case, it must be because of something else than the level of their road-bed and rails.

It was charged that they failed to keep their track in good repair, but the specific allegation is, that they “ had failed to so construct and operate their said track as to conform to the proper grade of said street, and’so as not to impede the passage of drays and carriages in safely passing over the same, and that by their gross negligence they had permitted the rails of said track to become elevated above the level and grade of said street.” The evidence points to no specific act of negligence in the construction or state of repair of the road, other than the elevation of the rails, and the fact that in consequence of the depressions in the street and the height of the rails, it was dangerous for loaded vehicles to cross the road at the place where the accident occurred.

There is no evidence whatever that there was any negligence in the character of rails used, or the manner in which the road was constructed or kept in repair, unless such negligence is to be inferred from the fact that at the place where the accident occurred the street was much used, and it was dangerous for loaded vehicles to cross the railroad there. If there were reasonable precautions in the manner of constructing and repairing the railroad, which in view of the frequency of passing vehicles at that point the company should have taken in order not to impede carriage travel, the evidence is wholly silent on the subject.

• The meaning of the expression “ impede carriage travel,” may be gathered from article V of ■ the contract, prohibiting switches and side tracks at the intersections of streets, and reserving the right to the city authorities to direct a change of any side tracks, turnouts and switches that “ impede carriage travel and cause public inconvenience;” ■ ...

It did not follow that carriage travel was impeded in the meaning of the contract, because vehicles could not at all points cross the road with reasonable safety. Certainly travel would be impeded and the railroad be in default, whatever the *149faithfulness with which it adhered to the established grade, if it failed to take such precautions as would enable vehicles to cross it with reasonable safety at such places and intervals as the public convenience required, although the difficulty was occasioned by the wearing away of the street from the established grade. But we repeat, it was not a conclusion of law from the contract that the railroad was bound at all events to keep its road at all points so that vehicles could cross it safely. The charge of the court, however, assumes this to be the law. The main part of the charge is as follows: “ Whenever the city of Galveston has established a grade for its streets, then it is the duty of - the Galveston Railroad Company to make her road-bed conform to such grade and on a level therewith. If you believe from the evidence that the city of Galveston did, before the injuries complained of, establish a grade and make its streets in accordance therewith, for that part of Market street where the injury occurred, and at the time of said injury the defendant had constructed its road-bed so as to conform to the grade so established by the city, and so as to conform to the surface of the street, and that at the time of the injury the road-bed was according to the grade, and that defendant was not guilty of negligence with respect to its said duty, then the . verdict should be for defendant.

“As to what constituted the road-bed, you must determine from the evidence introduced. It is also the duty of the railroad to so construct its road-bed and track, and keep the same in a reasonably safe condition for vehicles to cross the railroad bed and rails with reasonable safety. It is the duty of the city of Galveston to keep its streets up to the level of the street grade, and the railroad has no authority in any manner to improve, or in any manner interfere with, any portion of the street outside of its railroad bed, neither by digging it down or filling it up. Where the street has an established grade, and the street has been graded in accordance therewith, and the city railroad has properly constructed its road-bed and track in accordance therewith, so that it can be crossed *150by vehicles with reasonable safety; and that thereafter the street becomes worn so that it would not be safe to cross the railroad bed and track, and in such case a person in a vehicle were to attempt to cross the railroad bed and track, and was not guilty of any negligence in attempting to cross, and, in so attempting to cross, received an injury by the negligence of the railroad in not having its road-bed and track reasonably safe for crossing the same, although it should have been the duty of the city of Galveston to have repaired the street and raised it to its proper grade — on a level with the road-bed,—yet such a state of facts would not exonerate the railroad from damages so occasioned, if the injury was incurred by the negligence of the railroad in obstructing the safe passage across the road-bed.”

Because the charge of the court, construed with reference to the averments of the petition and the evidence in the case, was erroneous, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered March 23, 1880.]