"Ordinarily," said the Supreme Court in Sanches v. Railway Co.,88 Tex. 117, 30 S.W. 431, "negligence is a fact to be found or inferred from the testimony; but, where from the testimony on the issue of negligence no inference but negligence can be drawn, it becomes a question of law, and the court may instruct the jury that negligence has been established." Appellant insists, and we agree, that the facts of this case brought it within the exception to the general rule recognized in the Sanches Case, in that no other inference than one of negligence on the part of appellee reasonably could be drawn from the testimony; and further insists, and we agree, that the trial court therefore erred when he refused to instruct the jury to find in its favor, on the ground that it appeared that appellee was guilty of contributory negligence barring a right he otherwise might have had to recover of appellant damages on account of the injury he suffered. It seems from the testimony that appellee was at a point only 30 or 40 feet from the edge of appellant's right of way when he saw the train approaching. He was then walking rapidly toward the crossing. "Seeing the train was coming in and getting intolerably close," he said, "I peartened up. I don't know whether I was walking fast or trotting across to get across the track." The only excuse he gave for his reckless act in attempting to cross in front of it as he did was that he thought the train was "slowing down" as it approached the crossing. His testimony indicates he so thought because he assumed the train was the passenger train, which, he said, customarily "slowed down" by the time the engine got to the crossing. "I reckon," he said, "it was imagination with me, thinking it was a passenger train, that I thought the train was pulling down." Notwithstanding appellee thought the train was "slowing down," his testimony clearly indicates he also thought it nevertheless was moving at such a rate of speed as to require him to race with it if he beat it to the point where he expected to cross the track in time to cross safely over same. That he beat it to the point by a very narrow margin is indicated by testimony showing that when, falling, he "pitched forward
and fell right across the track," some part of the train struck and mashed toes of one of his feet. We do not think there was ground for disagreement between reasonable minds as to the nature of his act. It was plainly hazardous to attempt as he did to cross in front of a moving locomotive as close as the testimony indicates the one in question must have been to him, and an act that an ordinarily prudent person under the circumstances shown by the testimony would not have been guilty of. Railway Co. v. Abendroth, 55 S.W. 1122; 3 Elliott on Railroads, § 1168.
"The general rule," says Mr. Elliott, "is that it is negligence for a traveler to attempt to cross closely in front of an engine or train which he sees or knows is approaching the crossing, for a person who knows of danger is under an obligation to refrain from incurring it and endeavoring to avoid it upon a calculation of chance. Where a train is at such a distance as that an ordinarily prudent man would, without hesitation, attempt to cross the track, it may be that there is no negligence. But where an attempt to cross in front of an approaching train is voluntarily made upon a nice calculation of chances, the person making the attempt will be regarded as negligent if he undertakes to proceed upon the assumption that he has correctly calculated the chances of crossing in safety and is thereby injured."
That appellee would have won in the race he ran with the train, and have gotten safely across the track, as he testified he would, but for negligence on the part of appellant in leaving the spike projecting up from the crossing, causing him to fall, we think is of no importance in determining the nature of his act. The attempt to cross as he did would have been a perilous one had there been no obstruction of any kind on the crossing, and the fact that he might have succeeded in crossing without hurt to himself had he not fallen would not render his attempt less hazardous, viewed as it should be from his standpoint at the time he acted.
The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.