
    COLORADO & S. RY. CO. v. BROWN.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1911.
    Rehearing Denied Nov. 29, 1911.)
    Appeal from District Court, Hartley County; D. B. Hill, Judge.
    Action by Mrs. L. F. Brown against the Colorado & Southern Railway Company and another. Judgment for plaintiff, and the named defendant appeals.
    Affirmed.
    E. E. Whitted and Spoonts, Thompson & Barwise, for appellant. Barrett & Jones, for appellee.
   JAMES, C. J.

This was an action by Mrs. Brown against appellant and the Ft. Worth & Denver Railway Company for damages alleged to have been occasioned her by reason of injuries to her and to her wagon and team by being struck by an engine of appellant while she was in the act of crossing appellant’s track at a public road crossing in New Mexico. Plaintiff obtained a verdict for $7,869.60 against appellant; the court having directed the. jury to return a verdict in favor of its codefendant. The assignments of error are: (1) That “the court erred in refusing to give a peremptory instruction for appellant,” for the reason, as stated in the proposition, that the testimony showed conclusively that plaintiff was guilty of contributory negligence, and, there being no issue of negligence on the part of the employes of appellant after discovering the peril of plaintiff, the court should have directed a verdict for this defendant. (2) That the verdict was contrary to the evidence, it showing that plaintiff was guilty of negligence in going upon the track at the time and place and under the circumstances, which no ligence caused or contributed to the injury to her and her wagon and team, and the evidence fails to show that defendant’s employes were guilty of any. negligence in the premises. (3) That the verdict is excessive in amount. After examining the testimony, we think it clearly sufficient to support a finding by the jury in favor of plaintiff on the issues of defendant’s negligence and plaintiffs contributoi’y negligence submitted to them, and we make conclusions of fact accordingly. We find,, further, that the verdict, under the testimony, is not for an excessive sum. These conclusions require the judgment to be affirmed. Affirmed.  