thing at all now. I heard the sound that was passing over me after I was already struck down. I was hurt within the corporate limits of the city of Laredo. I do not know where the limits are. I cannot read or understand the English language." Redirect. Plaintiff testified: "I looked up the track, in the direction the train came, as far as the round house, and could see no train at all. It looked like there was some engines around the round house. As well as I can judge, it was one league from the place where I was hurt to the round house, although I am not a good judge. It was not more than a league to the house. I do not know how many Eagle Pass road crossings there were at the time I was hurt. I only know of one, and I was hurt at the main crossing." Recross by defendant. He said: "It was at the main crossing of the Eagle Pass road where I was hurt. It was not abandoned at the time, and it is not abandoned yet; and it is still used by the public. The round house is the nearest house to the road crossing. It is less than half a league."

This

C. A. McLane, a witness for plaintiff, testified: “I am one of plaintiff's attorneys in this case. I went out with plaintiff and Mr. Winslow and Mr. Randall, my associate counsel in this case, to the spot where plaintiff said he was hurt. spot is about three fourths of a mile north of the round house. The Texas Mexican Railway crosses the I. & G. N. track two hundred yards north of where plaintiff said he was hurt. It was on the old Eagle Pass road. I and Mr. Winslow stepped the distance from where the plaintiff says he was hurt to a stop sign fifty yards south. On the other side of the Texas Mexican crossing there was another stop sign. There was a plain stretch of track, where there was no obstruction to the view of the track, for a distance of seven hundred and fifty yards south from the point where plaintiff said he was hurt. There is a curve in the track about two hundred yards north of the round house. It was possible for a man on a train, with due caution, to see a man on the track at the point where plaintiff said he was hurt from said curve.

The train which injured appellee was moving north; and the evidence shows that the track of the Texas-Mexican Railway, where it had crossed the railway of appellant, had been taken up.

Only two other witnesses testified to the manner in which appellee was hurt; and their testimony was, so far as necessary to be stated, as follows: Joseph Miller, a witness for defendant, testified, in substance, as follows: Testimony of "I am a locomotive engineer. On the 10th day of witnesses. September, 1885, I was running an engine on the

defendant's

I. & G. N. road from Laredo to San Antonio. On the morn

ing of the 10th, about 9 o'clock, I started from the depot at Laredo as engineer on a freight train of cars north-bound for San Antonio. There were about sixteen cars in the train, besides the engine and caboose. The cars were heavily laden with cattle. Augustus Smith was conductor. When I had gone about two and a half or three miles on the road north of said depot, I saw a man ahead of me on the track-about a half mile-walk on the track towards the north. As soon as I saw him, I blew the whistle of the engine to give him warning that the train was approaching him. I kept blowing the whistle until the train had gotten within three hundred or three hundred and fifty yards of the man on the track; and, seeing that he did not get off the track, I whistled a signal for brakes to be applied. The brakes were applied, and I at the same time reversed the engine to stop the train, and the train was stopped as quickly as it was possible to do. When the train got within fifteen feet of the man on the track he looked back, and I saw his face as he looked back. Just as soon as he looked back, he began to walk off the track to the right-hand side; but he walked slowly and deliberately off the track, but did not get off in time, because before he had gotten entirely off the track the engine struck him, and knocked him down. When I passed him, he was lying in the ditch, about 8 feet from the track. I stopped the train as quick as I could. The man was put in the caboose, and I backed the train to the depot in Laredo, and turned the man over to Mr. Campbell, the station agent. When I backed the train to where the man was lying on the ground, and before we put him in the caboose, I asked him why he did not get off the track when I whistled. He said nothing, but put his hand up to his ear, and made a motion which to me indicated that he could not hear. At the place where the injury happened the railroad track was in first-class condition. The track is straight for over half a mile back from the point where the injury occurred towards Laredo, and north towards San Antonio, for four or five miles. The injury occurred on a straight track. The track was level and smooth. The right of way along said track was open and clear, with probably here and there a small mesquite bush on it, but not enough to obstruct the view along said track; and the country on either side of the track where the injury occurred has mesquite brush on it, but not thick. There were no houses or public improvements or streets near the place where the injury occurred. The track was in plain and unobstructed view for the distance I have mentioned-that is, half a mile on one side, and four or five miles on the other side. plaintiff was about a half mile ahead of the train when I first

The

saw him walking on the track. He was just walking slowly along in the direction the train was moving. When I first saw him, I blew the whistle several times, and until I got near him, to warn him of the approach of the train; and when I got near him I whistled down brakes,' and the conductor and brakeman applied the brakes, and at the same time I reversed the engine to stop the train, and the train was stopped as quickly as possible. I do not know the plaintiff personally. The first time I ever saw him, that I know of, was the dav he got hurt. I do not know, of my own knowledge, whether, at the time plaintiff got hurt, he was suffering from any defects in his hearing or not. I know that after he got hurt, and I asked him why he did not get off the track when I whistled, that he acted in such a way, by putting his hand to his ear, as to give me to understand he was deaf." Crossexamined: "When I first saw plaintiff on the track, my engine and train were running at about eighteen or twenty miles an hour, and I was about a half a mile from him, and without what is known as the yard limits.' My engine and train were provided with the best and latest improved brake appliances now in general use on the freight-cars running on the great railway trunk lines in the state of Texas. The engine had a whistle and a bell, which were blown and rung; also, a hand brake. The cars on the train had hand brakes. The Mexican National crossed defendant's track about 24 miles north of Laredo depot, but about that time the Mexican National track was torn up; and on the 10th day of September, 1885, said crossing was not in use, and trains of defendant's road did not have to stop there." Augustus Smith testified as follows: "During September, 1885, I was conductor of the train of defendant's road. On September 10, 1885, ** the train on which I was conductor on said day left Laredo, September 10, 1885, bound north. I was on the fourth or fifth car from the engine, and saw a man walking on the track, going in the same direction the train was moving. When the train got within a reasonable distance of the man, the engineer whistled for him to get off the track. The man was in the middle of the track going north,-same way the train was going. The man was deaf, and, of course, did not hear the whistle. When the train got near the man, the engineer whistled down brakes' to draw the man's attention; but the man could not hear, and the engine struck him, knocked him down, and run over his foot. The condition of the track where the man was hurt, first-class. It was straight, and the country on each side was open. To the north, the track was straight for several miles; to the south, for half a mile. The country was open, with a little mesquite in it, but

*

not much. There were no houses, streets, or public improvements of any kind in that vicinity. The right of way was clear all along the place where the accident occurred, except here and there a mesquite bush which had grown in the last year or two, but not enough to obscure the view of the train. To the north, I could see several miles along the track. To the south, about half a mile, the track was in plain and unobstructed view. When I first saw plaintiff on the track, he must have been a half a mile ahead of me, walking on the track. The whistle was sounded to warn him of the approach of the train; and, when the man did not get off, the engineer whistled for brakes, and the brakes were applied to stop the train, to keep from running over him. When the whistle sounded, plaintiff was about four hundred yards ahead of the train; and when the whistle sounded down brakes' the man was about one hundred yards ahead of the train. I did not know plaintiff before he was hurt. Never saw him before."

If appellee's statement of the manner in which he was injured be accepted as true, then a case probably exists in which it might be held that his own negligence did not contribute to the injury; but it is difficult to believe that his version of the transaction is correct. He states that he was

injured while crossing the track, on which he was not more than 15 seconds,-time ordinarily more than sufficient to enable one no way disabled to cross a railway track; that he looked in the direction from which the train came before entering on the track, and saw no train approaching, although he could and did see to the roundhouse, which, according to his own and other testimony, must have been distant at least three-quarters of a mile. His petition seeks a recovery on the ground that he was injured while crossing the railway track at a public crossing, and, as evidence of negligence on part of appellant, alleges that it was the duty of appellant to stop its train at the point where its track was crossed by the track of the Texas-Mexican Railway Company, which, however, is shown not to have been necessary, because that track had been taken up before that time, and no longer used; but, had this not been so, that point of crossing was about 200 yards north of the place where appellee was injured.

The charge of the court was in the main based on the theory that appellee was walking on the track, as stated by the other witnesses, but the charges were not strictly applicable to the uncontroverted fact of the case. That appellee was deaf is a conceded fact; and, in determining whether the servants of appellant used such care as was incumbent on them the jury should have been given to understand, in the absence of knowledge on their part, that appellee was deaf; that the

conduct of such employes should be considered as though appellee was not thus deficient, and their care measured from that standpoint.

.

assume that

If appellee, as he states, was attempting to cross at a public crossing, he was not a trespasser, and it was incumbent on the employes of appellant, in such case, to exercise at least ordinary care for his protection; and what would be ordinary care in case of exposure to danger of a man possessed of all his faculties would not be such care as to one who was deaf, and therefore unable to hear the warnings given of the approaching train. In either case, the supposition might be reasonably indulged and acted upon that appellee, having ability to do so, would leave the track when warned of his danger; but the act which would warn the man whose hearing was unimpaired would not give warning to the deaf man. In the absence of knowledge to the contrary, or of some fact which ought to arouse Employes may suspicion that this is not true, employes operating a railway train may assume that a man seen at a public crossing, or elsewhere on the track, is in possession of all his senses, and that care for his senses. own safety will induce him to use them, and to act on the warnings conveyed through them. On the other hand, "deafness, so far from excusing one for a failure to use his eye-sight, rather imposes upon him the duty of increased vigilance in the employment of that faculty; and, when contributory negligence is charged, it is, as a rule, not sufficient for the plaintiff to urge his deafness by way of excuse. It may be of the very essence of the plaintiff's default that, being deaf, he put himself in a position where his deafness would especially expose him to injury. The rule is, caveat surdus." Beach, Contrib. Neg. § 66; International & G. N. R. Co. v. Smith, 62 Tex. 254, 19 Am. & Eng. R. Cas. 21.

person on track pos

sesses all his

leading in

Among other like charges, the court gave the following: "(4) If you find from the evidence that the plaintiff was walking on the track of defendant company's railway when he received the injury, if he received any, Duty of emand that he may have been wrongfully on the track, ployes-Mis or, being rightfully there, may have negligently structions. remained upon it until too late to avoid collision, nevertheless, if the company's servants managing the train discovered the danger to which the plaintiff's negligence was exposing him in time to prevent the accident, or at least to lessen the injury by the exercise of ordinary care or diligence on their part, but negligently failed to do so, the company is liable in damages. The negligence of the company in failing to stop or sufficiently slacken the train when the