because of the failure to obtain a change of venue. The motion to change yenue was not considered, as shown by the original opinion, because the statement of facts was not approved by the judge nor signed by counsel for appellant, and further, because the statement of facts in the purported bill of exceptions was in question and answer form. Appellant refers to the fact that attached to the statement of facts, and at the first portion thereof, is a statement of facts introduced upon the motion for change of venue, and all of the facts as shown by said statements of facts, and that said statement of facts was duly signed by counsel for the state and counsel for appellant, and approved by the court on September 29, 1917. There is some testimony with reference to change of venue in the statement of facts.

1. RAILROADS
INGS-SIGNALS.
The omission of the statutory signals on ap-
proach of a train to a highway crossing is negli-
gence 'per se only in cases of those using or
about to use the highway, and not with re-
spect to trespassers.

2. RAILROADS 400(1) CROSSING ACCIDENTS-QUESTIONS FOR JURY.

In an action for the death of plaintiff's decedent through being struck by a railroad train, evdience held not, as a matter of law, to show that deceased was a trespasser, and not at the public crossing when struck.

3. TRIAL 142 - DIRECTION OF VERDICT

SUFFICIENCY OF EVIDENCE.

To authorize the court to take a material issue from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to conclusion to be drawn from it. 4. RAILROADS 316(4) CROSSING ACCIDENTS-NEGLIGENT SPEED.

In an action for the death of plaintiff's decedent through being struck by a train at a crossing, negligence might be predicated on the speed of the train, although the place of the accident was in the country, and there was no statute regulating the speed; it being the duty of defendant to exercise ordinary care in regard

The statement of facts at its termination is signed as stated by counsel and approved by the judge. The evidence in the statement of facts with relation to the change of venue was not reserved in a bill of exceptions as required by the statute, and therefore is not noticed. The statute is imperative, and has always been so held that in order to have a motion for change of venue considered a bill of exceptions must be reserved and the evidence set out in the bill of exceptions. It is not sufficient to set out testimony in a statement of facts, but the evi-5. RAILROADS 350(7) CROSSING ACCIdence must be reserved in a bill of exceptions. This is demanded by the statute, and has always been so held. There is nothing stated to show that appellant was placed in such condition that he could not obtain a statement of facts in a bill of exceptions

a proper bill containing the evidence. Therefore there is no question that the bill of exceptions could have contained a statement of the facts approved by the judge. What purports to be a bill is not approved by the judge, and it is not sufficient to include the evidence in a general statement of facts. There is no sufficient reason why the court should reconsider this case upon that ground or grant a rehearing.

Complaint also is made that the court was in error in not sustaining appellant's proposition that the charge on manslaughter was not sufficient. We hardly deem it necessary to review this matter, but refer to the original opinion for a statement of the condition of the record as to the facts in this connection. The case of Lane v. State, 29 Tex. App. 310, 15 S. W. 827. cited by appellant, does not seem to be in point, and it is therefore deemed unnecessary to review that case in connection with this record.

We deem it unnecessary to review or discuss other questions. We are of opinion that the judgment affirming the case was correct.

The motion for rehearing will be overruled.

thereto.

DENTS-QUESTIONS OF FACTS.

In an action for the death of plaintiff's decedent through being struck by a railroad train at a public crossing, evidence held to make a question for the jury as to whether statutory crossing signals were given. 6. RAILROADS 350(33) - CROSSING ACCIQUESTIONS OF FACT- DISCOVERED

DENTS
PERIL.

-

In an action for the death of plaintiff's decedent from being struck by defendant's train, an instruction that the law requires those in charge of railroad trains to use great care and prudence in operating them, so as to avoid injury to others, and if by the want of such care injury is inflicted upon others, without fault of themselves, the company would be liable, was not erroneous, as being misleading.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Action by Mrs. E. E. Luten and others against the Missouri, Kansas & Texas Rail

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

way Company of Texas to recover for wrongful death. Judgment for plaintiffs, and defendant appeals. Affirmed.

A. H. McKnight, of Dallas, W. E. Spell, of Waco, and Collins, Morrow & Morrow, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellees.

long and two short blasts; that the deceased appeared to have heard the said alarm signals given, as he veered from about the center of the track to near the east rail of the track, and appellant's servants believed that he was leaving the track; that at the very moment they discovered he was continuing northward on the track, and did not intend to leave it, they did everything in their power with the means at their command to reduce the speed of the train, stop the same, and prevent the striking of the said Luten. A jury trial resulted in a verdict and judgment in favor of appellees for $6,000. From this judgment the appellant perfected an appeal.

The first assignment of error complains of the trial court's refusal to give a special charge, requested by appellant, directing the jury to return a verdict in its favor. proposition advanced under the assignment is as follows:

The

TALBOT, J. This is the second appeal of this case. 184 S. W. 798. The suit was instituted by Mrs. E. E. Luten, for herself and as next friend for her four minor children, to recover of appellant damages sustained on account of the death of her husband, and the father of said children, E. E. Luten, who it is alleged was killed on April 1, 1914, as a result of being negligently struck by one of appellant's trains at a public dirt road crossing. The acts of negligence charged and which were submitted to the jury as issues of fact, are: (1) That appellant's servants in charge of the train negligently ran it, in approaching and passing over the cross-law is insufficient to support a judgment in fa"Where, as here, the evidence as a matter of ing, at a dangerous rate of speed; and (2) vor of plaintiff, it is the duty of the trial court, that said servants in charge of said train especially upon request, to instruct a verdict for negligently failed to blow the whistle or ring the defendant." the bell of the engine in approaching the crossing as required by law. It is also charged, in effect, that appellant's servants in charge of said train saw E. E. Luten, the deceased, on appellant's railroad track and, after realizing his danger from the approaching train operated by them, negligently failed to use the means at their command to stop the train and avoid striking the deceased, but, on the contrary, negligently ran said train against him, and inflicted the wounds which resulted in his death.

The appellant, under this assignment and proposition, sets out the testimony at length and argues that it shows conclusively that it was through no fault or negligence of its servants that E. E. Luten lost his life; that it discloses beyond dispute that the deceased, Luten, was not struck by the train while he was in the act of passing over the dirt road crossing, but at a point 200 or 300 feet north of this crossing and while a trespasser upon appellant's property, and after the operatives of the train had done all they possibly could do, by the use of the means at their command, to stop the train and avoid striking Mr. Luten after discovering his perilous position; that if, by any possible construction of the testimony, it can be said that the deceased, Luten, was struck by the train while he was attempting to pass over appellant's railroad track at the dirt road crossing, said testimony further shows beyond controversy that appellant's servants in charge of said train gave the statutory signals in approaching said crossing, and was in no whatever guilty of negligence which proximately caused the accident and death of the said Luten.

The appellant answered, specifically denying that the dirt road crossing, where it is alleged that the deceased was struck and killed, was a public road crossing, or one commonly and habitually used by the public as such. Appellant also denied that it was guilty of any of the acts of negligence charged, and alleged that the injuries received by the deceased on the day in question resulted from his own negligence and carelessness, in that he was a trespasser upon defendant's railroad track at the time of the accident, using it as a footpath; that he was extremely deaf, which was unknown to appellant until after the accident, but known to all of the members of his family; that deceased had been warned by his family and friends that his conduct in trespassing upon the track The deceased lived west of the appellant's of appellant would sooner or later result in railroad and about 400 yards northwest of his death, but that, notwithstanding such the crossing in question. A short time bewarning, he continued to use the same as a fore the accident causing his death he left footpath. Appellant further answered by say- home, carrying a shotgun. The railroad, ing that, when its servants operating the en- where it intersects the dirt road leading gine which struck the deceased discovered that from the deceased's house, runs practically the deceased was upon its track, they im- north and south, and the dirt road practicalmediately rang the bell, and kept it ringing ly east and west. At this intersection of until the deceased was struck, and blew the said roads the railway company had conwhistle of the engine, giving what is known structed, and maintained for many years

We make the following findings and statement of the testimony:

for sure about that; that, after he fell back against the engine, he didn't see him any more until he was picked up.

This witness, the engineer, was corroborated by the fireman as to the time the deceased was discovered on the track, the fog that prevailed, the blowing of the whistle, the statement that the deceased veered to the right of the track, and the efforts made to stop the train; but he stated positively that the bell was rung continuously from the time the train left the city of Waco until the happening of the accident. He also stated that, when the deceased was struck, he "was thrown right off on the right-hand side of the track. He was thrown off of the track right about the place where he was struck." Several other employés of the appellant testified that the whistle was sounded just before the accident occurred and that their attention was attracted by the continuous sounding of it.

Sam Chase, a witness offered by the appellant, testified that he was a passenger on the train the morning of the accident; that he had been railroading for 21 years, and was at the time of giving his testimony in the case working for the appellant; that he assisted in putting the body of the deceased on the train; that at the time it was picked up it was lying about 75 yards north of the crossing. On cross-examination he said that he had seen trains running at a rapid speed hit objects on the track and knock them quite a distance. He further said:

"Yes; I make that testimony that it [the body] was 75 feet north of the crossing, in face of the fact I got off the train and went immediately to the body, helped the people put him on, and got on as quickly as I could, and we pulled out as soon as we

*

*

could."

*

Dr. J. H. Thomas, a witness introduced by

the appellant, testified:

on the east side of the track and about 8 feet from the track; that he did not see Dr. Thomas measure or step the distance from the road crossing to where the hat was lying; that about 15 feet north of the hat he saw where something had hit the ground near the end of the ties and knocked a hole in the ground, and that there was blood on the ground there; that further north about 40 feet, and about 16 feet from the track on the east side, there was a place where something had hit the ground, and there was blood on the weeds there. Further phases of the testimony will be disclosed in the discussion of the assignments of error.

[1] The law seems to be well settled that the omission of the signals required by statute on approach of a train to a highway crossing can be treated as negligence per se only in cases of those using or about to use such highway; that is to say, the failure to give crossing signals is, by law, made negligence only "with respect to those for whose protection the statute was designed. others, the omission may or may not constitute negligence in fact; the question depending on the circumstances of the particular case, and being one for the jury, and not for the court, to determine." Railway Company v. Saunders, 101 Tex. 255, 106 S. W. 321, 14 L. R. A. (N. S.) 998, 16 Ann. Cas. 1107. In this case the Supreme Court takes occasion to discuss the question very fully, and to review a number of decisions theretofore rendered upon the subject by both that court and Courts of Civil Appeals. Some of those decisions are approved and followed, some of them disapproved, and others distinguished. But the rule, as above stated, is firmly established. There seem to be no peculiar circumstances in the case at bar, if the deceased was not

struck by appellant's train at the dirt road crossing, that raised an issue of fact for the determination as to whether or not the failure of appellant's employés in charge of the train to give the statutory signals for said crossing constituted negligence, and if the evidence shows conclusively that the deceased was struck by appellant's train at a place other than said crossing, and while he was a

That he had been_the_railroad surgeon since about January, 1915; that on the day of the accident he was called to see Mrs. Luten; that after he had been at her house about 20 or 30 minutes he, with G. L. Johnson and some others, went over to the road crossing; that after they got to the crossing they went north on the railroad track and found a hat, supposed to be Mr. Luten's hat, off the track on the east side; that the hat was picked up, and that they "went further on up the track, to trespasser upon appellant's track, as contendsee if we could see where the body was sup-ed by appellant, the deceased was not entitled posed to have been found, but didn't find any- to the protection of the statute in question, thing, only a place where there was a disturbance in the gravel, like where people had walked around. * * I didn't step to see how far that was north of where we found the hat, but it was about 20 steps. I stepped the distance from the crossing to even with where we found the hat, and it was 45 steps, or 130 feet. * * Mr. Johnson was there, and I think he is the man that picked up the hat, and somebody picked up a candidate card there somewhere. I didn't see any blood on the weeds; if there was blood on the weeds there, there is no reason why I didn't see it."

In this connection it may be stated that G. L. Johnson, the man referred to by the witness Dr. Thomas, testified that the hat found

and the failure to give the signals as the train approached the crossing gives them no cause of action, and their right of recovery depends solely upon the issue of whether or not the appellant's employés in charge of the train could have stopped the same, by the use of the means at their command, after discovering Luten's peril, in time to have avoided striking him, and failed to exercise ordinary care to do so.

[2] Do the facts conclusively show that the deceased was not struck by appellant's train at the dirt road crossing, but away from said

appellant's railroad track? We think not. I of the track, some distance; for it is an exThe testimony offered by the appellees on the ceedingly fair inference that the deceased's trial in which the judgment from which the hat was caused to fall from his head by the present appeal is taken is practically the collision, and that, if it fell directly to the same as it was on the former appeal, and ground, the location of the deceased's body what we said upon this question in our opin- indicates that it was pushed or thrown thereion on that appeal is pertinent and applicable after by the train the distance of 25 or 30 under the facts and circumstances shown by feet. Again, it is not at all improbable that, the record now before us, notwithstanding after the deceased was struck, his hat, after the testimony of appellant's engineer and fire- being dislodged from his head, was carried by man, who claim to have witnessed the un- the suction or agitation of the air produced fortunate accident. We then said, and now by the running train some distance in the repeat, that from the location of the wounds direction the train was moving, and this found upon the body of the deceased, and the would suggest that he was at the crossing, proximity of his hat and body to the crossing, or at least nearer to it than at the point together with other circumstances in evi- where his hat was found, when the collision dence to be considered, it may reasonably be occurred. At all events, we think it cannot inferred that he was at the crossing when be said, from the facts and circumstances struck by the train. The conclusion is war- shown, as a matter of law, that the deceased ranted that he traveled east after leaving was not at the crossing when struck by the his home along the road leading to the cross- railway train, ing until he reached the railroad; and that [3] Now it is settled law in this state that, he was going straight across the track from to authorize the court to take a material isthe west to the east side thereof when the sue from the jury, the evidence must be of collision occurred, and not walking north in such a character that there is no room for the direction the train was moving, is a rea-ordinary minds to differ as to the conclusion sonable, and not an improbable, deduction to be drawn from it. This has been affirmed from the facts and circumstances proved. The serious wounds, if not all of them, that were inflicted upon the deceased, were on the right side of the body. This is a strong fact or circumstance tending to show that he was standing facing the east, or moving directly across the railroad track, when struck. It is clear that, if he was walking north along the railroad track when struck, the wounds inflicted upon him would have been on his back, the back part of the head, and the back part of his leg. The fact that the wounds were on his right side is entirely consistent with the idea that he was standing or walking with that side of his body toward the approaching train when the collision that cost him his life happened.

True, it is possible, or even probable, that he may have turned his right side towards the train just before the collision; but that he did so is no more to be inferred from the established facts and circumstances than that he was going straight across the track. And while it is possible, it is not very probable, it occurs to us, that the deceased attempted to cross the railroad track north of the dirt road crossing, at or near where his body was lying when found. The railroad bed or dump at that point was several feet high, and evidently more difficult to pass over than at the road crossing, and there is nothing to indicate why he may have left the traveled road to cross the track at such a place. Moreover, his hat, as has been stated, was found within 15 feet of the crossing, some letters belonging to him about 30 feet from the crossing, and his body at the greater distance of about 40 or 50 feet therefrom, indicating that, after being struck by the train, he was carried, before being cast to the side

203 S.W.-58

in many decisions of our courts. The testimony of the witnesses introduced by appellant, which was not before the court on the former appeal, does not necessarily, we think, require a finding that the deceased was not struck by appellant's train at the crossing in question. The testimony of these witnesses in important particulars is not in harmony with the fair and reasonable inferences and deductions to be drawn from certain relevant facts and circumstances established by the testimony of witnesses offered by the appellees. That testimony is to the effect that the engine struck the deceased in the back, while the wounds inflicted upon the body of the deceased unmistakably indicate that they were inflicted on the side of the body and head, and just where he would necessarily be struck, if, as appellees contend, he was walking directly east over the crossing when hit by the engine. The finding of the deceased's hat, and letters belonging to him, and blood on the ground so near the crossing, are cogent circumstances indicating that the deceased was struck by the train at or very near the crossing, contrary to the testimony of appellant's witnesses. Besides, there are inconsistencies or contradictions in the testimony of some of appellant's most important witnesses, and the jury were the exclusive judges of their credibility and the weight to be given to their testimony. In weighing this testimony, the relation of the witnesses to the appellant as employés, and their probable interest in its behalf as such, were proper matters for the consideration of the jury, and their verdict indicates the testimony was unsatisfactory, and that at least vital parts of it were discarded.

In view of all the facts and circumstances