
    DAVIS, Agent, v. VAUGHAN.
    (No. 2667.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 21, 1923.)
    Railroads <&wkey;447(7) — Instruction, in action for injuries to dog not at crossing, predicating liability on failure to blow whistle and ring bell at crossing, held erroneous.
    In an action for damages for killing a dog in which it was shown that defendant’s freight train ran over the dog which had crawled through the railroad fence and was approaching a crossing in the same direction as the train, the distance from the crossing to the accident not being shown, an instruction predicating liability on failure to blow the whistle and ring the bell at the crossing as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6564, was error, since such failure was not negligence as a matter of law, but merely evidence to consider in determining whether, if they saw the dog, they used proper care to avoid the injury.
    Appeal from Harrison County Court;. W. IT. Strength, Judge.
    Action by H. H. Vaughan against James C. Davis, Agent. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Hall, Brown & Hall, of Marshall, for appellant.
    •Scott & Casey, Jones, Sexton & Jones, and Matt Cramer, all of Marshall, for. appellee.
   WILLSON, C. J.

The appeal is from a judgment in appellee’s favor for $350 — the value, as found by a jury, of a dog appel-lee owned, which, on October 15, 1919, was killed by a freight train operated over the Texas & Pacific Railway Company’s line of railway in Harrison county. Appellee alleged in his petition that the death of the dog was due to negligence of the trainmen “in failing to blow the whistle of the train and giving said dog notice that said train was approaching, and in failing to stop or attempt to stop said train after the discovery of said dog on the track, or when by the exercise of ordinary care on the part of the operatives of said train they could and should have discovered said dog on the track in time to have prevented his injury and death.”

There was testimony that the railway company’s road was fenced, and that the dog came through the fence and onto the track. A witness testified that the dog traveled east on the ends of the ties a distance of 150 or 200 yards and was then overtaken and struck by a freight train moving in the same direction. There was testimony that there was a road crossing east of the place where the dog was killed, but how far east was not shown.

The court in a general charge instructed the jury to find for appellee if the trainmen failed (and their failure was a proximate cause of the accident): (1) “To keep a proper lookout to discover the dog,” or (2) “to use ordinary care to prevent the killing of the dog,” or (3) “to ring the bell and blow the whistle when approaching the crossing.”

It appears from the record that appellant objected to the instructions on grounds specified, and it appears from an agreement of attorneys of the parties filed here that the objections were presented to the trial judge before he lead the charge to the jury. In his motion for a new trial appellant set up the action of the trial court in giving the instructions as a reason why the motion should be granted, and in his brief filed here insists such action was error entitling him to a reversal of the judgment.

Clearly, we think, the instruction to find for appellee if the trainmen failed “to ring the bell and blow the whistle when approaching the crossing” was erroneous. Such failure was not negligence as a matter of law, for the dog was not using or about to use • the crossing at the time, and therefore the statute (article 6564, Vernons’ Statutes) the court had in mind was not applicable to the ease. Ry. Co. v. Bennett, 59 Tex. Civ. App. 321, 126 S. W. 607; Ry. Co. v. Knowles (Tex. Civ. App.) 180 S. W. 1146; Ry. Co. v. Oil Co. (Tex. Civ. App.) 179 S. W. 1104; Ry. Co. v. Bandy (Tex. Civ. App.) 163 S. W. 341; Ry. Co. v. Mallard, 60 Tex. Civ. App. 199, 127 S. W. 1117.

On the case made by the testimony if the trainmen were guilty of negligence it was in failing to us ordinary care to discover the dog on the track, and if they did discover her there, in failing thereafterward to use ordinary care to avoid injuring her. Their failure, if they did fail, to blow the whistle and ring the bell, was merely evidence for consideration in determining whether, if they discovered the dog on the track, they, used proper care to avoid injuring her. >

The judgment will be reversed, and the cause will be remanded to the court below for a new trial. 
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