"This suit was instituted by appellee, Mrs. I. E. Cunningham, suing on her own behalf and as the natural guardian and next friend of her minor children, Ira and Freddie Cunningham, against the Missouri-Kansas-Texas Railroad Company of Texas, to recover damages for the death of the husband and father, I. E. Cunningham, resulting from being struck by an engine operated by appellant's employees at a public street crossing on East Broadway Street in the city of Forth Worth.
"The special issues upon which the case was submitted to a jury fairly reflect all material issues of liability on which the plaintiffs relied for a recovery and all defensive pleas on which the defendant relied to defeat the action. The issues referred to, together with their answers, are as follows:
"`1. Was the defendant negligent in operating the train at the rate of speed you may find the same was being operated, as it entered East Broadway at the time it struck the deceased? Ans. No.
"`2. If you answered No. 1 "no," do not answer No. 2, but if you have answered it "yes," then answer: Was such negligence, if any, a proximate cause of the train striking the deceased? Ans. ____.
"`3. Did the operators of defendant's train keep such a lookout for crossing pedestrians as the train approached East Broadway, as a person of ordinary prudence would have done? Ans. Yes.
"`4. Do not answer No. 4 unless you have answered 3 "no." Was such failure, if any you have found, a proximate cause of defendant's train striking deceased? Ans. ____.
"`5. Were defendants negligent in regard to the blowing of the train whistle as the train approached East Broadway? In this connection you are instructed that the statutes of this state require the blowing of the whistle at least eighty rods from the crossing and the failure so to do is negligence. Furthermore, the definition of negligence, as above given, applies likewise, even if the whistle were blown at least eighty rods from the crossing. Ans. No.
"`6. Unless you have answered No. 5 "yes," do not answer No. 6. Was such negligence, if any, the proximate cause of the defendant's train striking the deceased? Ans. ____.
"`7. The statutes of this state require the defendant to keep a bell on its locomotives and to ring the same at a distance of at least eighty rods from said crossing and keep such bell ringing until said locomotives shall have passed such crossing. Did defendant ring and keep ringing said bell as above defined, on its locomotive on the occasion that the train struck deceased? Ans. Yes.
"`8. Do not answer No. 8 unless you have answered No. 7 "no." Was such failure, if any, a proximate cause of defendant's train striking deceased? Ans. ____.
"`9. On the occasion that defendant's train struck deceased, was there a flagman at said crossing then and there flagging traffic of the approach of said train? Ans. Yes.
"`10. Do not answer No. 10 unless you have answered No. 9 "no." Was the absence of said flagman, if any, negligence, as that term is defined to you? Ans. ____.
"`11. Do not answer No. 11 unless you have answered No. 10 "yes." Was such negligence, if any, a proximate cause of defendant's train striking deceased? Ans. ____.
"`12. Do not answer No. 12 unless you have answered No. 9 "yes." Was said flagman negligent in regard to warning the deceased as he approached defendant's railroad track? Ans. Yes.
"`13. Do not answer No. 13 unless you have answered No. 12 "yes." Was such negligence, if any, a proximate cause of defendant's train striking deceased? Ans. No.
"`13-A. As soon as the engineer discovered the perilous situation of the deceased, did he use ordinary care to use all the means of his command, consistent with his own and his passengers' safety, to avoid striking the deceased? Ans. No.
"`13-B. Unless you have answered 13-A "no," do not answer 13-B. Was such failure, if any, as inquired about in 13-A a proximate cause of the defendant's train striking deceased? Ans. Yes.'
"In regard to such of the following questions as same may be applicable, if at all, you are instructed that if one has, by his negligence, caused another to be surrounded by such circumstances as to appear to that other to threaten the destruction of his life or serious injury, then that other is not to be held negligent merely by the fact that in an
effort to save his life, he makes a choice of means from which injury results, notwithstanding it may turn out that if such other had done differently, or had done nothing, he would have escaped injury:
"`14. Did the deceased use ordinary care to look for approaching trains on the occasion of his approaching the track of defendant at the time he was killed? Ans. No.
"`15. Unless you have answered No. 14 "no," do not answer No. 15. Was such failure, if any, a proximate cause or a proximately contributing cause of deceased being struck by defendant's train? Ans. Yes.
"`16. As deceased approached the crossing of defendant's track on the night of his death, did he use ordinary care to listen for approaching trains? Ans. No.
"`17. Unless you have answered No. 16 "no," do not answer No. 17. Was such failure, if any, a proximate cause or a proximately contributing cause of defendant's train striking deceased? Ans. Yes.
"`18. Did the deceased use ordinary care to heed the warning of the flagman, if any? Ans. No.
"`19. Did the deceased know as he approached the crossing of defendant's track that the train was approaching? Ans. Yes.
"`20. Unless you have answered No. 19 "yes," do not answer No. 20. Was the deceased negligent in going on the track of the defendant in view of the fact that you have found in answer to No. 19, as you have? Ans. Yes.
"`21. Was the killing of deceased an unavoidable accident? Ans. No.'
"Upon the findings of the jury the court rendered a judgment for the plaintiffs, $2,400 to Mrs. I. E. Cunningham, and $1,200 each for her children, Ira and Freddie, a total of $4,800. From the judgment so rendered the defendant duly prosecuted its appeal.
"Preliminary to the consideration of the questions presented in this certificate, and for the purpose of giving an outline of the situation and environment attending the death of I. E. Cunningham, we will state that the evidence shows that appellant's line of railroad extended south out of the city of Fort Worth and crossed East Broadway street some distance south of its depot. Approximately twenty-four railroad tracks intersect East Broadway street at this place, the distances between them varying from ten to twenty feet, appellants track being the last one on the east. The injury occurred about 8:30 on the night of January 10, 1924. There was more or less fog in the atmosphere, and as appellant's train approached the crossing from the north the statutory warnings were given. There was a lighted street lamp immediately over the point of intersection between appellant's railroad line and the street, and a flagman was stationed at the crossing, though the jury found him to be negligent in regard to warning the deceased. The track just west of appellant's was approximately fifteen feet therefrom, and between that track and the adjoining one on the west there was a distance of thirty to fifty feet. A great number of the tracks described were used by various railroad companies as switch tracks, and in using many of them the switch engines worked north of the street crossing, and did not pass over it. A switch engine was working on one of the tracks adjacent to appellant's at the time deceased was killed.
"The deceased and a companion approached from the west with the obvious purpose of going on down East Broadway Street. At some point not nearer than fifteen feet from the west rail of appellant's track, both deceased and his companion began to run. The other man, who was a little ahead of deceased as they reached the track, escaped injury, but deceased was struck and killed. There was nothing to obstruct the engineer's view down the track.
"Appellant urges before this court numerous assignments of error, only three of which have given us any concern. In our original opinion, filed herein, we reversed and remanded the cause on the theory that the trial court committed reversible error in giving the charge immediately preceding special issue No. 14, pretermitting, for reasons stated in our original opinion, a discussion or determination of questions 1 and 2 below. On motion for rehearing, duly filed, we were referred to certain evidence not theretofore specifically brought to our attention and are not now in entire accord, wherefore, in view of the importance of the questions raised, and of the disagreement among us, we deem it advisable to certify to your honors the following questions:
"1. Is there any evidence raising the issue of discovered peril?
"2. Did the court err in refusing to submit the issue of whether the negligence of deceased was the sole cause of his death?
"3. Did the court commit reversible error in giving the charge immediately preceding special issue No. 14, hereinbefore set out?
"Under the first question, appellant submits that the issue of discovered peril is not raised by the...
