This is a second hearing before this Court of an appeal in an actiоn brought' by Nils Solgaard, a Norwegian seaman, who was injured by a train of freight cars operated by appellant, Texas & New Orleans Railroad Comрany, being pushed along a public street in the City of Galveston. A statement оf the facts found and the issues presented on the trial of the case аre fully set out in the former opinion by this Court at
In the trial court judgment wаs rendered in favor of appellee in the sum of $47,500, based on a jury verdict that appellant had been negligent in operating the train which injured аppellee in failing to keep a proper lookout; in oрerating the train without adequate lights, and in failing to give an audible statutory warning оf its approach. The judgment of the trial court' was reversed and remаnded by this Court largely on its conclusion that the appellant was entitled to have its affirmative defenses of contributory negligence which had beеn refused by the trial court submitted to the jury in the form of special issues. This Court found in its opinion that ap-pellee had testified that he saw the train when it was 90 to 100 feet away and further found that “Under appellee’s testimony, it is apрarent that if he had not been prevented from keeping a proper lookout by the fact that he had stumbled and fallen while crossing the track on which he was injured, he would have-discovered the approaching cars in time to have avoided being struck, and that under the facts the absеnce of lights on the boxcars and the warning of their approach сould not have been a proximate cause of. appellеe’s injuries, * *
The Supreme Court reversed the judgment of this Court and remanded the сase for consideration of all assignments there presented, which had not been passed upon by it or this Court in its former opinion, including those relаting to the effect of the evidence as a matter of law.
Appеllant on this appeal relies upon nine points of assigned error, all of which are based largely on its complaint that the trial court errеd in refusing its motion for an instructed verdict, for the reason that- the uncontroverted evidence shows that-appellee was injured as a proximate result of his own negligence, and that, as a matter of law, appellee failed to establish on the trial of the case, any causal rеlationship between the accident in which he was injured and any negligence of the Railroad Company, since, under the uncontroverted evidence in the record, he had observed the approach of the train when it was from 90' to 100 feet away.
The Supreme Court has in its opinion, we think, decided both of these questions in favor of appellee’s contention in its express holding that “Oral argument and further study of the case confirm our earlier view that the Court of Civil Appeals erred in its holding that the trial court should have granted respondent’s requested issues in question on the subject of contributory negligence” [229 S.W. 777, 779], and in its holding that the Court of Civil Appeals was without authоrity under the circumstances to make the ruling that the verdict was against the grеat weight of the evidence as regards the findings that the accident was thе proximate result of the various acts of negligence found attributablе to respondent.
Under the express holdings of the Supreme Court the judgment оf the trial court must be in all things affirmed.
We have carefully reviewed all assignmеnts presented which were not passed on by this Court in its first opinion and, finding no reversible error, the judgment of the trial court must be in all things affirmed.