
    The T. & P. R’y Co. v. Margaret E. O’Donnell.
    (Case No. 1089.)
    1. Infant Trespasser — Negligence.— A railroad company is responsible for an injury to a child trespassing on its track, where the injury might have been prevented had the employees of the company used ordinary care in keeping an outlook.
    2. Same.—Contributory negligence of parent.—See this case for circumstances under which the court regarded it as unnecessary to express any opinion as to how far the negligence of the mother, or person left in charge of the child by the mother, should be imputed to the infant.
    3. Charge of court—Defect in — Practice.— A mere defect in the charge, in failing to explain an expression used in it, cannot avail an appellant who did not ask an appropriate instruction at the trial.
    4. Evidence.— Evidence is unnecessary to show that the loss of an arm reduces the capacity to earn money.
    5. Practice in supreme court — Verdict.— The supreme court will not reverse a case because of a verdict which is not clearly wrong, although a different verdict would have been more satisfactory; nor because the amount of the damages given may seem somewhat large.
    Appeal from Bowie. Tried below before the Hon. B. T. Estes.
    Action for damages for loss of an arm by the negligence of the railroad company. Verdict and judgment for $8,000.
    This case should have appeared in 57th Texas, but the transcript was not accessible. More space than usual is allowed it on account of the dissenting opinion of Associate Justice Bonner. The evidence was as follows:
    Dr. Rooks, a witness for the plaintiff,
    testified that he resided in Texarkana, Texas; was a practicing physician; that he knew the child, Margaret Ellen O’Donnell. Was called upon by the grandmother of the child on May 12, 1880, to assist in dressing its arm; found the arm cut off between the shoulder and the elbow, and so lacerated and bruised that it -was necessary to amputate the arm, or the stub remaining, at the shoulder joint; and, together with Dr. Dale, removed the arm at the shoulder joint. The injury is of course permanent. It was the left arm. I have been partially paid for my services. The railroad company paid me ten dollars. Have seen the railroad track at section house Ho. 59, where the accident is said to have occurred. The track is straight and' free from obstructions.
    Cross-examined: Dr. Dale was employed by the company and assisted with the case.
    Mrs. Lizzie O’Donnell, a witness for the plaintiff,
    testified: I reside in Texarkana; am the mother of Margaret Ellen O’Donnell, the plaintiff. I know William Behan. On the 12th of May, 1880, I lived at section house Ho. 59, on the line of the Texas & Pacific Kailway Company, in Bowie county, Texas. This section house belongs to the T. & P. Railway Co. Went there to board section men; was employed by the roadmaster to keep, the section house and board the men. The lower step of the section house is about fifteen feet from the track. The house is situated on a bank, by a cut about four or five feet high; the track was straight for half a mile aboATe and below the house; the child was hurt Hay 12, 1880. I went down to a branch that morning to wash; the branch was about two hundred yards from the house, and only a step from the railroad. When I left the house I told my sister to take care of the baby, as the train was coming. When I got to the branch, the train passed me going up grade slowly toward the section house. In a moment or two I heard the bell ring and one sound of the whistle. I was attracted to the house by the screaming of my sister; I ran in and found the baby standing on the floor with its left arm cut off. I got a sheet, wrapped it around the baby, got in the caboose attached to the train, and went to Texarkana to my mother’s house. Ho one was with me in the caboose except my child, the conductor and train men being, as I supposed, on a different part of the train. The child was eighteen months and nine days old when the accident occurred; had been weaned about two months. I found Finegan, the fireman, with the child when I reached the house. I got to the house before the conductor did. The child -was sick for two months; one month we held her in our arms constantly, and now, when the weather is damp and cloudy, the child complains of its arm. My sister resided at the section house with me, and assisted me in cooking and washing for the section men, and always took care of the baby when I was absent from the house. My sister was then over fourteen years of age and well grown for her age. My circumstances were such that I had to do my own housework, washing, ironing and cooking for the section men. There was from eight to twelve section men boarding with me at the section house. I am a widow, and was at that time, and went to keep the section house to try and make money to pay off a mortgage upon my homestead. I lived at the section house thirteen months. There was no fence around the house in front next to the railroad. The bank was cut down from the steps to the ditch beside the track. The ditch was about two feet deep, with a plank walk leading from the steps across the ditch and on the track; the house was fenced in the rear. The child always played in the back yard. The last time I saw the child before it was hurt, my sister was standing on the gallery, holding the baby in her arms. I was then about fifty yards from the house. I went out to the branch, placed my bonnet on a bush, put the fire which I carried in my hand under the pot, and immediately thereafter I heard my sister screaming.
    Cross-examined: The house Avas in the same condition when I went there as it was on the morning my child Avas hurt. There was no yard around the front of the house Avhen I went there, and the house stood the same distance from the track. I went there by permission of the defendant and without paying rent. The road runs nearly east for a mile, going from Marshall by the section house. It is up grade from, the switch to the house. Don’t know how it is through the switch. There was nothing to impede the view coming east toward the section. I did not see engineer Holmes at the house; saw Finegan and conductor Martin. Neither of them said there how it happened. Martin said he did not know how it happened,, as he was in the caboose at the time, and only got to the house as I got there. I found Dr. Dale at my mother's when I got there. Suppose conductor telegraphed for him. Don’t know who paid him. I never was asked for pay. My mother sent for Dr. Rooks. Both of them attended on the child. My mother lived in Texarkana at the time. I went in the caboose to Texarkana.
    Miss Rebecca Brownlee, a witness for plaintiff,
    testified: I am sister to Mrs. O’Donnell, and am between fifteen and sixteen years old. In May last I lived at section house No. 59, on the line of the Texas & Pacific Railroad, in Bowie county, Texas. My duties were to assist my sister in cooking, washing, and caring for the section house. I remember the morning the baby was injured; it was a bright, clear, sunshiny morning. I saw the ■ baby that morning only five minutes before it was hurt. My sister went to the branch to wash. When she (my sister) left the section house I was standing on the gallery holding the baby in my arms. Mrs. O’Donnell,- on leaving the house, said to me: “ Take good care of the baby, the train is coming.” I carried the baby into the kitchen, the rear room of the house and- one furthest from the railroad, and put it down on the floor and commenced washing the dishes that had been used at breakfast. While I was washing the dishes Finegan, the fireman of the engine, brought the child to the room where I was. I said to Finegan, “ Whose child is that ? ” He replied, “Yours.” I said, “What is the matter with it; is it dead?” He said, “No, it only has its arm cut off; the engine run over it.” I began to scream for my sister; she came. I ran out to the train and asked the train men to come and help us; it .was not more- than four or five minutes after I put the child down in the kitchen until Finegan brought it in the house. When the train stopped, the engine had not quite reached opposite the corner of the house. After Mrs. O’Donnell came to the house, she wrapped the • child up in a sheet; a caboose attached to the train was pulled up opposite the door, and Mrs. O’Donnell and the baby were helped into the caboose and the train proceeded to Texarkana, leaving me at the house alone. As soon as the train left, I ran up the track, folloxving the train about one-quarfcer of a mile, to Matthexvs’ mill, for Mrs. McKenzie to come to the house and stay xvith me. I returned to the section house in company xvith Mrs. McKenzie. Upon reaching the house, at the suggestion of Mrs. McKenzie, xve went out to look for the baby’s track. We tracked the baby from the steps across the plank, over the ditch on to the track, and down the center of the track betxveen the rails; betxveen the last track and the blood, the ground seemed to have been disturbed xvithin a fexv feet of xvhere xve found the blood on the rails, xvhere the arm had been cut off. I looked on the outside of the track and along the side for the baby’s tracks, and found none. There was no xxm-y for the baby to get on to the track except out of the door, down the steps and across the plank over the ditch. The track is perfectly straight for near a mile. Three-quarters of a mile of this distance isxxrestof the house and in the direction from which the train was coming. The track xvas clear and free from all obstructions, having but recently been cleared off on both sides and surfaced. The child xvas barefooted on that morning. The kitchen xvas the extreme rear room of the house. That morning I xvas to wash up the dishes, clean up the house, make up the beds and get dinner for the section men, xvhile my sister, Mrs. O’Donnell, xvas doing the xvashing for the family and the men.
    Upon cross-examination xvitness said: The accident occurred an hour or two after daylight. My sister left the house about a quarter past seven o’clock A. M. I xvas induced by the suggestions of Mrs. McKenzie to go and look for the tracks, and see the signs of injury on the rails. The distance xve tracked the child xvas about txventyfive yards from the section house. I did not discover that the child xvas gone until Finegan brought it in. Heard the train coming. Did not keep the front door fastened. If they had been closed the child could not get out.
    Upon the direct examination xvitness says: I carried the child into the kitchen, which is the furtherest room from the track, when its mother xvent to the branch.
    Mrs. McKenzie, xvitness for the plaintiff,
    testifies: I resided at Matthews’ mill in May, 1880. I was at the place where the child xvas hurt, the same morning, and soon after it occurred. Myself and Miss Eebecca Brownlee tracked the child doxvn between the rails to xvithin a fexv feet of xvhere we found the blood on the rails, about twenty-five yards from the front of the house. We saxv the barefoot tracks on the dirt between the rails, and could foliow'them easily. The track of the road is so straight that you can see nearly a mile. This was a clear, sunshiny day. I did not see the child that morning. I saw the dismembered arm. I looked on each side of the rails, but saw no tracks except those in the center of the roadbed, between the rails. Where we saw the last track of the child, the ground was so much disturbed that we could not tell anything more about them.
    Mr. J. W. Mayher, for plaintiff,
    said: He was familiar with the defendant’s road west of and up to section house 59. The road is perfectly straight for a mile or more from the section house west towards Marshall, with nothing to impede the view of a person approaching from the west; and is up-grade from Lyons’ switch to section house. . -
    Cross-examined: Could not tell how the road was at other points on the line, and on being asked how he came to be so familiar with the road at that point, replied that there was a steep grade west of the section, and that was'how he came to be so familiar with it.
    William Holmes, a witness for defendant,
    testified as follows, to wit: Witness was engineer on May last, in the employment of defendant. Has been engineer since, and running engines since 1874. Have worked on the Missouri Pacific, Galvesfcon, Houston & Henderson, M., K. & T., and T. & P. railroads. Had been in the employment" of the defendant three years before May last. Knows where Lyons’ switch is on defendant’s road. The last end of the switch is about two hundred yards from section house 59. It is downgrade to within about fifty yards of the switch, going east, but at the switch and then up-grade approaching the section house. A train will run down grade with steam off. Witness shut off steam on going through Lyons’ switch, going east. Witness was running the train as engineer the day when the child’s arm was cut off. Witness was engineer on the train Ho. 10. Witness saw the child just before the engine struck it. Witness looked out on both sides of the track. Witness first saw the child in the ditch at the side of the track. After the train had passed the switch the train was running ten or twelve miles an hour. The child, when first seen by witness, was on its hands and knees, close to the track, but off the track, playing. Witness supposed it to be a hog or pig. It soon straightened up, and witness saw it was a child. When it crawled upon the track Avitness immediately gave signal to put on brakes. Witness reversed his engine and pulled open the throttle to its full extent. Witness found it would be impossible to stop. Witness then ran oat of the cab, over the boiler, and out upon the cowcatcher, or pilot, and tried to catch the child, but too late. The engine struck and "pushed it down and passed over it, hiding it from witness’ fight. The train stopped with about the third car from the engine over the child. Fireman Finegan took the child from under the cars, and its arm was cut off. Finegan carried it into the section house. A iter failing to catch the child, witness returned to the engine to prevent its backing, after it had stopped. Witness’ station as engineer was at the right side, and the fireman, when not firing, is on the left. Witness and fireman are (were) both in place and on the lookout. The way to stop a train is to whistle for brakes, reverse the engine and put on steam, and to use sand when the wheels slip. The engine went about opposite the section house before the train stopped. The cars were partly empty and partly loaded. It was a freight trains Air-brakes are not used on freight trains. The child was dressed in a little white dress, or frock. Mrs. O’Donnell wrapped the baby up, got in the train and went to Texarkana. Witness always looked out for obstructions on the track; there was none on it then. The vegetation is kept cleared off both sides. Witness and the fireman discovered the baby about the same time. The fireman said, is There is a (the) baby.” The train commenced slacking its speed when the engine was reversed, and was. ranning slowly when it struck the child. The fireman jumped off the engine to ran ahead, bat stumbled and fell. It is more difficult to stop a freight than a passenger train. The child was about sixty feet from the point opposite the section house, on the railroad,, when struck. Witness left nothing undone, known to him, to stop the train. The conductor telegraphed to Texarkana, from the junction, about the accident. The child and its mother were carried on the train to Texarkana.
    On being cross-examined, witness (Holmes) stated that he was laid off, or suspended from work, for running into a caboose, about fifteen days since, that he had orders to look out for; and, in explanation, stated that it was on a regular train, and that he had been up two nights before and had dropped off to sleep. At the time of injury to plaintiff, witness took train Ho. 10, at Marshall, about three o’clock P. M. It is sixty-four miles from Marshall to section house Ho. 59. Witness does not know what he was doing the night before. Witness was about sixty yards from the child when he recognized it as a child. It was in the ditch at the side of the track. It got up and crawled upon the track; got upon its feet about twenty-five yards from the engine, and was clapping its hands when the engine struck it. Witness did not tell Dr. Rooks, Mrs. Brownlee or Mrs. O’Donnell that witness saw the child upon the track two hundred and fifty yards ahead of the engine, but might have told them that he saw it at that distance on the side of the track and in the ditch. Witness does not know whether the brakes were put on when signaled for or not.
    The defendant introduced Owen Finegan, who said: I am a fireman on an engine on defendant’s road. Have been so engaged for five years. Know that portion of defendant’s road through Lyons’ switch and by section house 59. The switch arid section is about ten miles.from Texarkana. West of the switch is a steep down-grade, and it is level through the switch to its east end; from thence up to the section house the grade rises, and for a considerable distance east of the house an engine and train going east generally runs through the switch without steam, the weight of the train carrying it through. Steam is let into the engine about the switch to carry her over the grade. It is about three hundred yards through the switch, and about two hundred yards from the east end to section house 59. The road runs due east and west, and is straight for about a mile, through the switch up to the section house. I was fireman on the train that injured plaintiff. Wm. Ilolmes was the engineer. It was Ho. 10, freight, on defendant’s road, going east, from Marshall to Texarkana. We reached Lyons’ switch on time, between 6 and 1 o’clock, on the morning of May 12, 1881. Did not stop at Lyons’. We run through the switch at the usual speed — eight or ten miles an hour. After we passed east end of switch, I saw a little child crawling up on the ties, about sixty feet from the section house. I cried out to Holmes to stop — that it was the baby. As I turned, I saw Holmes had also discovered it, and his hand was on the whistle-rope. He signaled for brakes, and reversed the engine, and opened the throttle to gi re her all steam after reversing. As the train approached, 1 saw we could not stop in time, and jumped from the engine to try and run ahead and rescue the baby, but stumbled and fell. As I jumped I saw Holmes running out over the engine towards the pilot. The train stopped soon after it struck the child. I pulled her from under the third car of the train. The child stood up by me when I pulled her out. After the train had stopped and I got hold of the child, I found her left arm cut off. I carried it to the house and found there Miss Brownlee, who called the child’s mother. The mother and the child were carried into town, to Mrs. Brownlee’s. Dr. Dale was there when we got there. Think the conductor telegraphed to him. Holmes, the engineer, was at his post, and he and I were both looking out. I did not see the child until it crawled up on the ties after we passed out of the switch. I know of no means of stopping trains other than those resorted to to stop this. We did all we could to save the baby. I got her out from under the third car from the front.
    Cross-examined: There was nothing to impede the view that I know of. It was a bright, clear morning, and the sun was shining. As I first saw the baby she was crawling upon the ends of the ties. I know Dr. Rooks, Mrs. O’Donnell and Miss Brownlee. Have seen and talked with them all frequently about the injury to plaintiff. I never did tell any, or either of the persons named that I saw the child, but could not make out what it was in time to have stopped the train. He ver told them that I was firing up the engine or could have seen the child. I was not firing the engine at the time. I had fired up before getting to Lyons. I went frequently to see the child during its sickness, and often talked with the parties named about the accident.
    Re-examined: I told them always that we did all that could be done to stop the train and rescue the child, but that it was too late after we saw it to stop.
    Defendant closed. Dr. Rooks, re-called by plaintiff, sáys: I saw engineer, Wm. Holmes, at Mrs. Brownlee’s on the evening of the accident or the next day. My recollection and impression is that he told me that he saw the child first on the track and thought it was a hog or a bunch of rags, and did not recognize it as a child until too late to stop the engine. I was waiting on the child as a physician, and felt interested in the case and inquired the particulars of him.
    Cross-examined: He also said he did all in his power to save the child, but could not.
    Mrs. Brownlee re-called: Know Wm. Holmes and Owen Finegan; have talked Avith them both about the injury of plaintiff. Holmes told me he could not tell what it Avas until the child stood up on the track. Finegan told me that he was firing up at the time or he would have seen it sooner.
    Re-examined: The baby was a general favorite and pet with Holmes and the train-men generally. He seemed .much distressed at the accident, and shed tears when he spoke of it. He said that he could not help it, and did all in his power to stop the train, and even tried to reach the baby from the cow-catcher. He stated that when he discovered Avhat it was, that it was too late, but that he did everything in his power to stop the train. Holmes and Finegan both came frequently to see the baby after her hurt. The fireman, engineer and conductor and train-men generally know the baby lived at the section house.
    The entire charge of the court, omitting the statement of the case, is as follows:
    “ The burden of proof is upon the plaintiff to show the negligence complained of.
    “ If such a degree of negligence is shown as hereafter explained, and plaintiff shows that those having charge of her used care and prudence in guarding her against danger, then plaintiff is entitled to such damages as will compensate for the injury.
    “ The defendant, as a railroad company, had a right to run their trains upon the track, and are not responsible for injury done to persons on the same, that could not be avoided by the use of ordinary and reasonable care and diligence in preventing injury.
    “ Hegligence, in a general sense, is any omission to perform a duty imposed by law for the protection of one’s own person or property or that of another. Ordinary negligence is the want of such care and diligence as reasonably prudent men generally use in regard to the subject matter of inquiry, under such circumstances as those under consideration would use to endeavor to prevent the injury complained of.
    “ It is npt denied that the plaintiff was injured by the train of defendants, and the plaintiff’s right to recover in this case depends upon whether or not the injury could have been prevented by ordinary diligence and care on the part of defendants’ agents who had charge and were running the train at the time. The fact that plaintiff was on the track of the railroad, which defendants had a right to use and run upon, did not discharge defendants from the observance of due and proper care towards her, or to run over her, if that could have been avoided by the exercise of ordinary care and watchfulness.
    “If the evidence shows that the plaintiff, at the time of injury, was a minor under the age of two years, and those in charge of defendants’ train, by the exercise of ordinary skill and caution, might have observed plaintiff on or near enough the railroad track to be struck by the said train, and recognized her as an infant in time to stop the train in the usual manner before it reached and ran upon her, then the plaintiff should recover damages, unless the evidence further shows that the mother of plaintiff, or the person having charge of her, failed to exercise ordinary prudence and diligence in preventing plaintiff from, going upon the track of defendants’ road. And if the evidence shows that the plaintiff was off the railroad track and out of reach of the train when the train came in sight of the locality Avhere plaintiff was, and went upon the track of the railroad after the train approached so near her that the same could not be stopped by defendants’ agents by the use of all the means usual for stopping such trains, in time to avoid the danger, and all such means Avere so used at the time, then plaintiff cannot recover.
    “But if the plaintiff Avas on the track when the train approached, at such a distance that she might have been seen and known to be a child by the persons in charge of the train in time to stop the train before it reached her by means aforesaid, and no such negligence is shoAvn on the part of plaintiff’s mother as that mentioned, then, plaintiff is entitled to such reasonable damages resulting from the injury as the jury may deem proper, not exceeding the amount claimed.
    “You are to determine from the facts and circumstances as to whether or not defendants exercised the usual and proper diligence and effort to. avoid injury to the plaintiff, and Avhether or not there was such a degree of negligence on the part of plaintiff’s mother as to render such negligence the proximate cause of the injury.
    “ If the evidence shows that the mother of plaintiff used reasonable precaution to restrain plaintiff and guard her against danger, taking into consideration all the surrounding circumstances, including the mother’s situation and condition in life, then no negligence can he imputed to the mother of plaintiff. And if the evidence shows that the plaintiff was under the age of two years at the time, none can be imputed to the plaintiff herself,
    “ In case you find for the plaintiff under the evidence and the foregoing instructions, and that she is entitled to any damages, in estimating the amount of the same you can take into consideration the physical suffering of plaintiff resulting from the injury; the probable effect of the injury in future being upon the health and use of her limb; and, generally, any reduction of the poAver of and capacity to earn money and pursue the course of life Avhich she might otherwise have done. It is your province to determine the amount of damages, Avhich, if allowed, can only extend to reasonable compensation for the injury done,
    “ If you believe, from the evidence, that the plaintiff was an infant of not more than íavo years of age, and while on the railway track of defendant was run over by the trains of defendant, causing the loss of her arm, and that the injury might have been avoided by the use of ordinary diligence on the part of the persons in charge of the train, as alleged, and it appears in evidence that the plaintiff’s mother, or persons in charge, used such care as an ordinary prudent person would use in guarding her child against danger, then you will find for plaintiff damages as instructed.
    “But if you believe, from the evidence, that the injury was unavoidable by the use of ordinary diligence on the part of the persons in charge of the train as heretofore instructed, or that ordinary diligence and care was wanting on the part of plaintiff’s mother in preventing her from going upon the road, and that said negligence was the proximate cause of the injury, under the rule of law given you upon that branch of the case, then you will find for the defendant.”
    The two following special instructions were asked for by the defendant and refused:
    “ A railroad track, except where the highway crosses it, is exclusively the property of the company, and the company and its employees are under no obligation to anticipate that children will be sitting and playing on the track, but they have a right to presume that no one will be on the track; and if the jury should find, from the evidence, that the employees of defendant on the train, as soon as they saw the child, did all in their power to stop the train, and that the child was killed on the road at a point where it was not crossed by a highway, and that the employees of the company were in the exercise of ordinary care, then the verdict must be for the defendant.
    “ Refused.
    “ The defendant has a right to a free track for its trains, and no persons, infant or adult, can lawfully be upon the track between the crossings. The defendant was not bound to use any extraordinary diligence to discover a person on the track under such circumstances ; but if the engineer and fireman were at their posts arid on the lookout, and failed to discover plaintiff in time to avoid injuring her, the plaintiff cannot recover.
    “ The foregoing charge refused, because, in the opinion of the court, ordinary care and watchfulness is required on part of engineer running train.”
    Defendant asked the following instructions, which were given by the court:
    “ Plaintiff had no right to be on defendant’s track, but the fact of her being there gave defendant no right to run over her. But the same degree of caution would not be required in running the train as at a regular station or crossing; if the engineer and fireman were on the lookout and exercising ordinary care in running the train, and failed to discover plaintiff in time to avoid injury, she cannot recover. By ordinary care is meant the usual care exercised in running a train on any other part of the road.
    “ The foregoing charge given. B. T. Estes, Judge.
    “ If the engineer and fireman were at their posts taking ordinary care in running the train, and failed to discover plaintiff in time to stop the train, she cannot recover. Also, if the engineer and fireman were at their posts on the lookout, using ordinary care, and failed to discover the plaintiff; or if her position was such that the engineer and fireman could not determine what it was until too late to stop the train, she cannot recover. Also, if the engineer and fireman were on the lookout, and discovered the plaintiff, and if immediately on such discovery they took every known precaution to stop the train and to rescue the child, she cannot recover.
    “ Given.
    “ The fact of plaintiff having been injured on the road of defendant, not at a crossing, raises no presumption of negligence on part of defendant or its servants.
    “ To entitle the plaintiff to a verdict, it must appear from the evidence that her position on the track was such that the engineer and fireman could see and did see plaintiff in time to avoid the injury.
    “ The foregoing charge given, with the following added: £ Or might have seen plaintiff by the use of ordinary diligence, in time to have avoided the injury.’ B. T. Estes, Judge.
    “ If the appearance and discovery of plaintiff on the track was so unexpected and sudden that it left no time to check the train and avoid the injury, she cannot recover. Also, if plaintiff was stooping, so as to conceal her person from the engineer and fireman, or if she was in the ditch by the track in such position that they could not recognize her as a child; and if, on discovery, they used their utmost effort to stop the train and save the child, she cannot recover. The engineer and fireman were not required to use more than ordinary care, and the fact of the residence of plaintiff at the house, if known to them, would not require any additional care on their part.
    '' Given.”
    
      James Turnee and T. J. Campbell, for appellant.
    I. The use of a railroad track, except where a highway crosses it. is exclusively the right of the railroad company which owns it, and the company and its employees are under no obligation to anticipate that children will be sitting or playing on the track. The company owes to persons so on its track no duty except the negative one, not maliciously, or with gross and reckless carelessness, to run over or otherwise injure them. Persons have no right, themselves, or to allow their infant children, to go on the track for their own amusement. 126 Mass., 377; 125 Mass., 75; 41 N. Y., 525; R. R. Co. v. Huffman, 28 Ind., 287; 17 Ind., 102; R’y Co. v. Goldsmith, 7 Ind., 43; Smith v. R’y Co., Cent. Law Jour., vol. 2, p. 500. See, also, 8 Am. R. Rep., pp. 129, 315; R’y Co. v. Hiatt, 17 Ind., 100; Thompson on Negligence; Shearman & Redfield on Negligence, sec. 491; 126 Mass., 380; 44 Pa. St., 379; Cauley v. R’y Co., 98 Pa. St., 498.
    II. No person, infant or adult, has the right to be upon the track of a railway company at points between public crossings; and the company and its employees are not bound to use extraordinary diligence to discover persons on the track, under such circumstances.
    III. The fact that a person is injured on the track of a railway company by its cars, at a place not á public crossing, raises no presumption of negligence on the part of the company or its servants. All that is required of the company, under such circumstances, is the use of ordinary care, and not wantonly, or by gross negligence or recklessness, to inflict injury on such person.
    IY. The law requires of the court, in cases of this kind, to define to the comprehension of the jury (in immediate connection with the charge complained of), what is meant by “ the defendant’s exercising the usual and proper diligence and effort to avoid injury to plaintiff;” and to explain to the jury what that “usual and proper diligence and effort ” is; and also to define clearly to the jury the term “negligence,” as applied to plaintiff’s mother, and especially 'what was meant by “proximate cause” these being terms not usual to common understanding. See remarks of Mr. Justice Bonner in R. R. Co. v. Nixon, 52 Tex., 26, referring to the duty of court to explain to the jury.
    Y. It was the duty of the court to define to the jury what it meant by the “ mother’s reasonable precaution to restrain plaintiff, taking into consideration the mother’s situation and condition in life, then no negligence can be imputed to the mother.” The said charge was vague and uncertain, leaving the jury to make inferences, without reference to what was the “mother’s reasonable precaution,” and especially without explaining what the court meant by the mother’s situation and condition in life. Such instructions are well calculated to mislead the jury. R. R. Co. v. Nixon, 52 Tex., 19.
    
      VI. It is the province of the court, in charging the jury, to coniine itself exclusively to the law of the case; and especially in cases like the one at bar, so well calculated to excite the sympathies of the jury, not only not to charge upon the facts, but to be diligent so as to avoid even the appearance of charging upon the facts of the case; and where the facts are charged upon even by inadvertence calculated to influence the jury on the facts, it is error, and the judgment should be reversed. This assignment has reference to that part of the charge of the court where the court says: “ And it appears in evidence that the plaintiff’s mother, or person in charge, used such care as an ordinary prudent person would use in guarding her child against danger,” without prefixing the word “ if ” before the words “ it appears,” thus leaving the impression on the jury that it was the opinion of the court that the mother or person in charge did in fact use all the precautions necessary, etc.
    VIL The damages rendered by the jury in their verdict are excessive, showing that their verdict was the result of prejudice, as there was no proof warranting damages to so large an amount.
    VIII. The court erred in charging the jury as follows in reference to damages, and led the jury to give exorbitant and excessive damages without any proof. The court said: “ You can take into consideration, in estimating the amount of damages, the probable effect of the injury on the health of plaintiff and use of her limb, and, generally, any reduction of the power of and capacity to earn money,” etc. R. R. Co. v. Nixon, 52 Tex., 25; R. R. v. Le Gierse, 51 Tex., 189.
    IX. The verdict in this case was contrary to the law and the evidence ; the jury wholly disregarded the instructions of the court and the evidence in the cause. Because, 1. The evidence failed to show that defendant (company) or its agents were guilty of any neglect of duty resulting in plaintiff’s injury. 2. Because the evidence conclusively showed that both fireman and engineer were at their posts and on the lookout; that the train was running at ordinary speed; that engineer and fireman failed to discover the plaintiff until too late to stop the train ;■ that the said agents used every means in their power to stop the train as soon as plaintiff was discovered, even at the risk of their own lives, and that all the exertions and appliances were immediately used to avoid the danger; and further, that the said agents could not by ordinary care have discovered the- child in time to avert the danger, she being very small, only about two years old, stooping in the ditch and crawling on the track. 8. Because the evidence shewed that those in charge of plaintiff negligently permitted, the child to get on the track at a considerable distance from the house, at a place not a crossing, without any notice to defendant, at a time when trains were expected, and when those in charge should have been on the lookout to guard the child from, danger; and further, said evidence plainly shows that the accident was wholly inevitable so far as defendant was concerned.
    
      Crawfords & Smith and H. C. Hynson, for appellee.
   Could, Chief Justice.

It is not proposed to discuss the various propositions of counsel for appellant, based on objections to the charge as given, or the refusal of charges asked. In so far as these propositions deny that a railroad company owes any duty to persons on its track, they assert a principle which this court has heretofore refused to adopt, and which is believed to be generally, if not universally, denied by the courts when applied to the case of an infant trespasser. H. & T. C. R’y Co. v. Sympkins, 54 Tex., 620; Pierce on Railroads, p. 332 et seq.; 2 Thompson on Neg., p. 1180 et seq. In so far as they assert that a railway company is only required to use ordinary care to discover persons on its track, they but reiterate what was sufficiently embodied in the charge. The objection that the charge is upon the facts of the case, or that it assumes facts improperly, is not borne out by the record. Taking in connection the charge of the court and the instructions asked by defendant and given, it appears to us that the defendant has no just or legal cause of complaint as to the charge. If the court might properly have explained the meaning of the expression “ proximate cause,” as used in the charge, the defendant is not in a condition to avail itself of a mere defect, or want of completeness, which it should-have sought to remedy at the time by asking an appropriate instruction.

We remark that throughout the charge of the court the negligence of the mother is imputed to the infant plaintiff. As presented to us, the case requires no expression of opinion on this mooted legal question, nor on the question how far the negligence of a person left by the mother in charge of the infant, would also be imputed to the infant. The appellant got the full benefit of a charge going as far as it asked as to the effect of contributory negligence by the mother, and the court was not asked to go further and instruct the jury to impute to the child the negligence of its aunt, who was left in charge of the child by its mother.

This brings us to the question of fact whether the verdict is clearly contrary to the evidence.

If the evidence of the engineer and fireman be accepted as a strictly truthful and accurate account of the outlook kept by them, and of what they saw and did, counsel for appellant say that it shows everything to have been done which they ought to have done, and that nothing was done which ought to have been left undone. It is urged that the evidence of these witnesses must control the case; that the jury were bound not to disregard it. There seems to be no doubt that each of these men, after they' discovered the child on the track, acted promptly and bravely in making every effort to save it, which either duty or manhood could require. In our opinion, however, there was evidence, positive and circumstantial, from which the jury might have inferred that these servants of the company had failed to discover the child in time because of their own want of proper watchfulness, and that in their anxiety to exculpate themselves from responsibility for an accident which they deplored, they had, whether knowingly or not, failed to give the facts correctly. There is evidence of statements by each of these witnesses, inconsistent with material parts of their testimony. Finegan, the fireman, says he first saw the child crawling up on the ties, and at the same time he says Holmes, the engineer, had also discovered it. Holmes says he only recognized it as a child when about sixty yards distant. Finegan denies that he was at the time firing up the engine, or that he had told Mrs. O’Donnell that he was firing up or he could have seen the child. Mrs. O’Donnell testifies that he did tell her that he was firing up at the time or he would have seen the child sooner. Holmes says he first saw it close to, but off of the track, and supposed it to be a hog or pig. Dr. Kooks testifies to his recollection and impression that Holmes told him he first saw the child on the track, and thought it was a hog or bunch of rags. Holmes denied saying this, but says he might have said that he saw the child on the side of the track and in the ditch two hundred and fifty yards distant. There is quite an improbability about the statement of Holmes that the child was in the ditch, and crawled out of it on the track. Whether he meant it or not, he is made to say that the child, when he first saw it, was in the ditch. The evidence is that the ditch was two feet deep, and it seems improbable that this child of eighteen months crawled out of a ditch of that depth as described. The inference from the evidence of Holmes and Finegan, taken in connection, is that nothing was seen until after the train, traveling at the rate of ten or twelve miles an hour, had passed the east end of a switch two hundred yards from the house, and not more than one hundred and seventy or one hundred and eighty yards from where the child was hurt, and still less from the point where the train was when Holmes saw it standing up on the track clapping its hands. The few seconds that intervened, not at most exceeding two-thirds of a minute, according to the rate the train was traveling, afforded scant time for a child of that age to climb out of such a ditch, across the ends of the ties, on to the track, and to stand up there. Indeed, according to the testimony of its aunt, but four or five minutes had elapsed after the child was in the house until it was brought to her after the injury, and the entire time seems short enough to have fully occupied the child in making its way from the house, down the steps, across the plank walk, and then down the track, in the direction its mother had gone, to where it was run over on that track. Its footsteps were plainly traced down the center of the railway track, twenty or twenty-five yards, to within a few feet of where the blood showed the accident to have happened. Ho tracks were found outside or in the ditch. If, in view of these circumstances, and the testimony tending to show contradictory statements by the fireman and engineer, and especially of the fact that there was nothing to prevent them from seeing along and on the track, which was straight, and the view wholly unobstructed, the jury believed that the failure sooner to discover the child was caused, not by its being in the ditch, or on its hands and knees close to the track, but by the want of proper watchfulness in these servants of the company, it cannot be said that there was no evidence on which to base their conclusion. Their verdict having been approved by the district judge who heard all the testimony, we are unable to say that it is clearly wrong. Although we may think that the weight of the evidence tended to a different conclusion, and would have been better satisfied with a different verdict, the majority of the court do not feel at liberty to reverse the judgment on that ground.

[Opinion delivered October 24, 1882.]

As to the amount of the verdict, while we think it large, we do not think it such as to justify our setting it aside. The matters to which the charge of the court invited the attention of the jury in estimating the amount of damages were proper for their consideration. That the permanent loss of her arm, amputated as it was at the shoulder .joint, would reduce her capacity to earn money, would seem to be an inference which the jury could draw for themselves, without the aid of witnesses. We see nothing in the charge on this point calculated to mislead.

Having found no error justifying a reversal, it is ordered that the judgment be affirmed.

Affirmed.

Dissenting Opinion.

Bonnee, Associate Justice.

I feel constrained to dissent from the decision of the majority of the court in this case.

It is shown that the mother of the child voluntarily resided at the place at which the accident happened, and that it was within a few feet of the track of the road; that she knew of the approaching train, and recollected at the time that the child might be injured. Under these circumstances, great care was due on the part of the mother. But without expressing any opinion whether the contributory negligence of the mother should be imputed to a child of such tender years as the plaintiff, I however think that the judgment should be reversed on other grounds.

There is a great preponderance of evidence against the verdict. It cannot be questioned but that the plaintiff ivas wrongfully on the track, a fact which the employees on the train were not bound to anticipate would happen, further than to use ordinary care to discover possible danger. The train was running at a reasonable rate of speed. The only eye-witnesses to the fact, the engineer and fireman, swore positively that they Avere at their post of duty and on the lookout, and that as soon as they saw the danger they used extraordinary efforts to avert it and save the child, even at the risk of their own lives. That nothing Avas left undone which they could have done. The circumstantial evidence does not necessarily conflict with their positive testimony, Avhich, under the circumstances, should be entitled to very great weight. The evidence shows that the child’s tracks were obliterated at the place where the engine came in contact with her. In cases Avhere there is a great preponderance of evidence against the verdict, I do not understand the true rule to be that the verdict should be upheld because, perchance, there might be some evidence upon which the jury might have found; but that the testimony to support the verdict should be so reasonably certain and sufficient as to shoiv that the jury did not err.

I do not think that the verdict and judgment in this case were warranted by the testimony. I am further of opinion, that, under the circumstances, the verdict was excessive.  