of the case, we do not feel authorized to say that it was conclusively shown that the deceased was not struck at the crossing. It is true the witness Johnson on cross-examination said he merely estimated the distance from the crossing to where the hat of the deceased was found, and the appellant's surgeon, Dr. Thomas, stated that he stepped the distance, which he says he found to be 130 feet; but the value and weight to be attached to the respective statements of these witnesses was for the jury. Neither the ability of the witness Johnson to closely approximate the distance from the crossing to the place where the hat was lying, nor the correctness of his estimate, was, except by the testimony of Dr. Thomas, called into question, and the jury was authorized to conclude that he was not as badly mistaken in his estimate of the distance as the testimony of that witness would indicate. Dr. Thomas merely stepped the distance, and according to his statement of the number of steps Johnson underestimated the distance 115 feet. This is hardly probable, and the jurors were warranted in concluding, as they evidently did, that Johnson's estimate of the distance was accurate. Besides, Johnson, who was present when Dr. Thomas claims he stepped the distance, says that he did not see Thomas step it, and the jury may have concluded that he did not in fact step the distance, but merely estimated it, as he did the distance from the hat to the place where he discovered "a disturbance in the ground like where people had walked around." the sense that it was commonly used by pedestrians and persons traveling in wagons, buggies, and other vehicles, and a place where the operatives of appellant's train might expect persons to be at any time. In approaching such a crossing, although it be in the country, railway companies have no right, regardless of the danger to persons that may be lawfully using the crossing, to operate its trains at such speed as they see proper. Although the place of the accident is in the country, and there is no statute regulating the speed of trains, yet negligence may be evidenced by the speed at which the train is being propelled, when considered "in connection with the place of the accident and the circumstances surrounding it." It was the duty of appellant's servants on the occasion in question to exercise ordinary care, and whether they were exercising such care in the speed of the train under the circumstances of the situation was a question for the jury. The case of Railway Co. v. Langham, 95 S. W. 686, cited by appellant, does not, in our opinion, announce a contrary rule. Instead, the rule as stated here is distinctly recognized. [5] Did the evidence show beyond controversy that the statutory signals were given? We think this question should be answered in the negative, notwithstanding there is positive testimony of some of appellant's witnesses that they were. The testimony of the engineer is to the effect that he sounded the road crossing whistle about one-quarter of a mile distant therefrom, but that just before, or about the time, the bell, which had been ringing for the Dallas-Waco road crossing, was stopped, and not started again until the stock alarm whistle was blown, when he discovered the deceased on the track. As to the sounding of the whistle, the fireman's testimony is practically the same as that of the engineer; but he testified that the bell was not only kept ringing after the Dallas and Waco dirt road had been passed, but made the unreasonable statement that the bell "had been ringing all the time since we left Waco," a distance of about 19 miles. In this latter statement the fireman was contradicted by the engineer who said: [4] Having held that the evidence raised an issue of fact as to whether or not the deceased, Luten, was struck at the crossing, it becomes necessary to consider whether or not it raised issues of negligence with respect to the speed at which the train was being propelled and the failure to give the statutory signals as the train was approaching the crossing. First, could negligence be predicated upon the speed of the train? We think so. That this crossing should be classed as a public one, though not established by the commissioners' court or worked by the county, so far as the giving of the statutory signals is concerned, can hardly be questioned. It was over a high dump in appellant's road. The approaches, which extended back about 35 feet, were built by approached that Dallas and Waco crossing with pellant, and the crossing maintained by it. For many years the crossing, with full knowledge of appellant, had been habitually used by the people in the neighborhood, and the necessity for giving the statutory warnings for their protection prior to the accident in question had been recognized by appellant, and such warnings usually given. The undisputed evidence shows that the train which struck and killed E. E. Luten was running 35 or 40 miles an hour as it approached this crossing, and that a dense fog prevailed. The crossing, it is true, was "Yes; put the bell to ringing when we ap the railroad, and then cut the bell off after passing that crossing, and the bell was started to ringing next after I blew the whistle for this man. No; the bell was not ringing all the way from Waco." These were the only witnesses who testified in regard to the ringing of the bell. The train passed along on the east side of the deceased's house, and Mrs. Luten, who was sitting in the east room of her house as the train approached the crossing where the deceased was struck, and who heard the noise of the train, but could not see it on account "I heard the train that morning as it went | bell was not continuously rung from a disby. The whistle was not blown that morning tance of at least 80 rods from the crossing for that crossing. I heard the train coming before it got even with the house. It wasn't as the train approached it, but that it was not making very much noise. The first time I started to ringing until the locomotive was heard the whistle blown, it blew two short in a much less distance from the crossing. blasts, and then stopped right after that; while Whether the failure to give these signals it was coming to a stop I could hear a grating sound. When I heard the two short blasts, and was the proximate cause of the injury and the stopping of the train right after that, the death of E. E. Luten was a question for the train was over in the direction of that crossing jury. Clearly we would not be authorized to say as a matter of law it was not. near where Mr. Luten was found." This positive testimony of Mrs. Luten is not qualified by any other statement made by her in reference to the blowing of the whistle for the crossing in question. She said that, if the engineer sounded the whistle for the Dallas and Waco crossing, which was a half mile or mile south of the crossing where it is claimed the deceased was struck, she did not hear it; that she did not mean to tell the jury it did not blow for that crossing. In addition to Mrs. Luten, other witnesses introduced by appellees testified with respect to the blowing of the whistle at or near the crossing. W. W. McCoy, who lived about three-quarters of a mile away, said that at the time Mr. Luten was killed he was at home chopping wood; that he did not see the train, but heard it; that he also heard the report of a gun, and that right after he heard the report of the gun he heard the whistle of the train give two short blasts, and that the train then stopped. He further said that he heard the noise of the running train before he heard the report of the gun, that he heard the whistle just after the re port of the gun, and that he did not hear the whistle before the gun fired. N. H. Humphreys' testimony was substantially the same as the witness McCoy. He did not hear the noise of the train, but heard the report of a gun and train whistle blowing. This testimony, we think, conflicts with the testimony of appellant's engineer and fire man, and was amply sufficient to raise an issue of fact as to whether or not the whistle of the locomotive was sounded as required by statute as the train approached the crossing. It is not purely of a negative character as was the testimony in Railway Co. v. Kutac, 76 Tex. 473, 13 S. W. 327, and Railway Co. v. Anderson, 126 S. W. 928, and a decision of the question is not governed by those cases. Its probative force is at least equal to that of the testimony touching a similar question in the case of Southern Traction Co. v. Owens, 198 S. W. 150, and in that case a writ of error was denied. So far as the ringing of the bell is concerned, the testimony of the engineer and fireman, the only witnesses who testified on that issue, is in conflict, and the testimony of the engineer clearly warrants the conclusion that the [6] The next contention of appellant is that the testimony conclusively shows that, after appellant's servants in charge of the train discovered the peril of the deceased, they did all in their power to stop the train and avoid injuring the deceased, but were unable to do so; therefore the issue of discovered peril was not in the case, and that issue should not have been submitted to the jury. We are not prepared to say the testimony is of that conclusive character upon this question claimed for it by appellant: Whether the operatives of appellant's train discharged the duty imposed upon them by law, after discovering the peril of the deceased, to avoid striking and injuring him, was, in our opinion, a question for the jury. The testimony of the engineer is that the locomotive was about 150 or 200 yards from the deceased when he discovered that the deceased was a man; that he then blew the stock alarm whistle, and the deceased veered to the right, and he thought he was going to get off the track, but that he did not do so; that the train was running at the rate of 40 miles an hour; that he did not know how far the train ran, after he blew the whistle and saw the deceased was not going to get off the track, until he put on the brakes; that he supposed he ran 200 or 300 feet from the time he blew the whistle until he put on the emergency brakes; and that the only brakes he put on were the emergency brakes. The fireman said that, when they first saw Mr. Luten on the track, the engineer made an application of air, and not until they got within about 250 feet of the deceased did he apply the emergency brakes and open the sand pipes. The engineer also testified, as we have shown, that the deceased was 200 or 300 feet north of the road crossing when struck, and that when he saw the object on the track and blew the whistle the first time he must have been just south of the crossing a few yards; that it was either a short way south of the crossing, or about at the crossing; that he kept his eyes on the deceased all the time after he discovered him on the track, and at no time did he see the deceased look around. So that whether, under all the facts and circumstances shown, the operatives of the train exercised that degree of care and diligence required by law to stop the train and avoid striking the deceased was an issue of fact, and not one of law. While appellant could not be charged with negligence until its servants in charge of the train actually discovered the peril of the deceased, "still it would be liable if, after | Besides, the court gave a special charge resuch discovery," they "failed to use the great-quested by appellant upon the issue, and the est precaution to avoid injuring" him. San- refusal of another requested charge upon the ches v. Railway Co., 88 Tex. 117, 30 S. W. 431. same issue is not reversible error. The speWhether the engineer was justified, especially cial charge given, however, presented the since the deceased failed to give evidence of theory of the one refused. knowledge of the approaching train by looking in its direction, in concluding, from the mere stepping of the deceased to near the east rail, that he was going to leave the track, and the consequent delay in applying the emergency brakes and opening the sand pipes, were pertinent and legitimate matters for the consideration of the jury upon the issue. Again, the testimony authorizes, as we have held, that the deceased was at the crossing when struck, and, if he was, the emergency brakes and sand, according to the testimony of the engineer, were not used until the locomotive approached within a few yards of the crossing. We would not be justified in saying as a matter of law that the issue of discovered peril was not raised by the evidence. [7] The second assignment of error complains of the refusal of the court to give a special charge, requested by appellant, that, unless the jury believed that E. E. Luten was struck while upon the road crossing, they could in no event find in favor of the appellees. There was no error in refusing this charge, for the reason that it ignored the issue of discovered peril, and required a finding absolutely in favor of appellant, unless the deceased was at the road crossing when struck by the locomotive. Besides, the issue of whether or not the deceased was struck at the crossing was, submitted in the court's general charge. Nor did the court materially err in refusing to give appellant's special charge on the question of contributory negligence. It may be doubted that contributory negligence was an issue in the case; but, if it was, the court's charge upon the subject was very slightly less general than the requested special charge. Practically the only difference in the special charge and the general charge, in submitting the question, is that the special charge imposed upon the deceased, which the general charge did not in terms do, the duty of exercising ordinary care "to ascertain the presence or approach of a train to avoid striking him." The general charge did define ordinary care and contributory negligence, and told the jury in effect that, if the deceased went upon appellant's railroad track without using the care and caution which would have been used by an ordinarily prudent person under similar circumstances, and such failure proximately contributed to his injury, he could not recover. The court's general charge upon the issue of discovered peril was also sufficient, we believe, to protect the rights of the appellant, and the refusal of the special charge requested by appellant in relation thereto affords [8] The court charged the jury as follows: "Bearing in mind the foregoing definition, you are further instructed that the law requires to use great care and prudence in operating those in charge of railway engines and trains them, so as to avoid injury to the persons of other people. And if, by the want of such care or prudence, injury is inflicted upon others, without the fault of themselves, such company would be liable for such injury and damage.' Appellant complains of this charge, and cites Railway Co. v. Smith, 87 Tex. 348, 28 S. W. 520. The charge in question is almost literally the same as that given in Railway Co. v. Matula, 79 Tex. 577, 15 S. W. 573, which under the facts of that case was approved by the Supreme Court. In the later case, however, of Railway Co. v. Smith, supra, the Matula Case was discussed and limited as to the degree of care required of railway companies at public crossings to prevent injury to persons upon such crossings, and the rule announced to be that such companies must use ordinary care to discover the presence of persons at such crossings and to avoid inflicting injury upon them, and that in the exercise of that degree of care they must use such an amount of vigilance and caution as a man of ordinary prudence would use under like circumstances. But in view of the facts in Railway Co. V. Matula, and another charge given therein, to the effect that, if the jury should find "that the injuries complained of were inflicted by the defendant, by the negligence and want of due and proper care on the part of its employés," to find for the plaintiff, the affirmance of the case was held to be proper, notwithstanding the giving of the incorrect charge. For similar and as strong or stronger reasons, we think it may be said that the like charge here complained of should not require a reversal of this case. There was no application in the present case, as there was in the Smith Case, of the charge to the facts of the case, and it was in no way referred to in any paragraph of the charge in which the facts are grouped and the conditions upon which a verdict for the appellees was authorized. On the contrary, negligence and ordinary care were properly defined in the first and second paragraphs of the court's general charge, and in the paragraphs thereof enumerating the facts which the jury was required to find, in order to return a verdict in favor of appellees, the care imposed upon the appellant was ordinary care as defined in the second paragraph of the charge, and the negligence therein referred to was the negligence defined in the first paragraph of the charge. So, as was similarly said in Railway v. Smith, supra, we NESS. witness is admissible when it relates to a fact charge, the jury must have understood that 15. EVIDENCE 472(1)-CONCLUSION OF WITthe degree of care incumbent upon appellant was ordinary care, and that by the charge complained of the jury must have understood that the appellant, under the circumstances of the case, was required to exercise a great amount of vigilance. At any rate it is not probable, in view of the entire charge, that the jury, by the charge under consideration, was misled to the prejudice of appellant. The fifth assignment of error is therefore overruled. The eleventh assignment of error asserts that the twelfth paragraph of the court's charge is upon the weight of the evidence, in that it assumes that deceased was struck upon a crossing, whereas the uncontroverted evidence shows that he was struck on defendant's track at a private place where the right of way was fenced. We do not so construe this paragraph of the charge. It distinctly submits, in our opinion, for the decision of the jury, the issue whether or not the deceased was at or upon the crossing. There are a number of other assignments of error, but the several questions presented by them have been discussed and disposed of against appellant by what we have said in our consideration and treatment of the first assignment of error. Believing the record discloses no reversible error, the judgment of the district court is affirmed. FEDERAL INS. CO. v. MUNDEN. (No. 7921.) (Court of Civil Appeals of Texas. Dallas. May 18, 1918.) 1. EVIDENCE 183(3)- DOCUMENTARY EVIDENCE-PROOF OF LOSS OF ORIGINAL. Proof of delivery of the original invoice to another than the party seeking to introduce a copy thereof did not prove its loss nor raise a presumption in that respect, thus laying proper predicate for the admission of the copy. 2. SALES 52(5)-EVIDENCE-"INVOICE." Though an "invoice" might be an incident to a sale of personalty, standing alone it did not evidence that fact, being a mere detailed statement of the nature, quantity, and cost or price of the things invoiced, and as appropriate to a bailment as to a sale. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Invoice.] 3. APPEAL AND ERROR 1056(2)-EXCLUSION OF UNNECESSARY EVIDENCE. Exclusion of documentary evidence favorable to plaintiff on an issue not disputed, as to which plaintiff's witness testified, was not error. 4. EVIDENCE 471(2)-CONCLUSION OF WIT NESS-THEFT. In suit by the insurer of an automobile against theft to recover a car as the car for loss of which it had paid insured, the statement by insured as a witness for the insurer that his car "was stolen," particularly in view of the statutory definition of theft in Pen. Code 1911, art. 1329, was inadmissible as purely a conclusion; for a witness should give the facts and leave to the judge or jury the function of reasoning from them. In suit by the insurer of an automobile against theft to recover a car as the car for loss timony of the treasurer of the insurer that the of which it had paid insured, rejection of tesloss was paid because of "theft," as being the conclusion of the witness, was proper as against the contention that it was admissible as a circumstance tending to show theft, since the witness was not detailing facts and circumstances from which the jury might infer or reason to the commission of a theft. 7. SALES 233 (3)-TITLE TO PROPERTY BURDEN OF PROOF. Where defendant was in possession of an automobile by purchase from a third person, it was the duty of an insurer of an automobile against theft, claiming the car as that for loss of which it had reimbursed insured, to prove a better title than the prima facie title of defendant. Error from District Court, Ellis County; W. L. Harding, Special Judge. Suit by the Federal Insurance Company against U. Munden. Judgment for defendant, and plaintiff brings error. Affirmed. Crane & Crane, of Dallas, for plaintiff in error. Farrar & McRea, of Waxahachie, for defendant in error. RASBURY, J. Plaintiff in error sued defendant in error to determine the ownership of an automobile, which at the commencement of the suit was in possession of the latter. Plaintiff in error alleged that it insured the automobile against loss by theft, while Jones of Boston, Mass., subsequent to which owned by and in the possession of Everett S. the automobile was stolen, upon proof of which plaintiff in error paid Jones $1,700, whereupon, by the express provisions of said contract of insurance and by operation of law independently thereof plaintiff in error became subrogated to Jones' right to recover said automobile, and which right was confirmed by said Jones in writing, and that defendant in error's possession of said automobile was wrongful, but that he had on demand refused to surrender same. Prayer was for possession of the automobile, for its depreciation in value, and for other alternate relief, etc., unnecessary to detail. In aid of the suit writ of sequestration was issued, by authority of which the sheriff seized the automobile, whereupon defendant in error presented said officer statutory replevin bond and retained possession thereof. The defendant in error by appropriate pleading in substance denied the material allegations of plaintiff in error's petition. Trial was by jury, who at the conclusion of the evidence were peremptorily directed to return verdict for defendant in error, which was followed by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes similar judgment, from which this appeal price of the things invoiced, and it is as apis taken. The only facts necessary to be stated are that plaintiff in error insured a 1912 model Cadillac automobile motor and engine No. 61174, owned by Everett S. Jones, of Boston, Mass., against loss by theft. Thereafter proof of loss satisfactory to plaintiff in error was made, showing said automobile had been stolen and whereupon it paid Jones $1,700 under its policy. By the insurance contract plaintiff in error was subrogated to Jones' right to recover said automobile when stolen, and when the plaintiff in error paid the loss. Defendant in error, who resided in the vicinity of Midlothian, Tex., at the time the suit was filed, was in possession of a 1912 model Cadillac automobile motor and engine No. 61174 by purchase from one Dees of the same locality. The first ground of error assigned is the refusal of the court to permit plaintiff in error to introduce in evidence a copy of the invoice issued by the Cadillac Automobile Company to Jones covering the automobile and certain accessories and charges. As predicate for the introduction of the copy of the invoice plaintiff in error proved by the treasurer of the Cadillac Automobile Company of Boston, from whom Jones purchased the car, that said company sold to Jones a 1912 Cadillac automobile of the same motor and engine number as the one in controversy, for which no bill of sale was executed. The bill of lading was delivered to the railway company, and the original invoice for which was delivered to Jones. In connection with the foregping Jones testified that he bought from the Cadillac Automobile Company of Boston a .. car of the model and engine and motor number identical with the one in controversy, paying therefor approximately $1,795, the amount shown in the copy of invoice excluded, and for the loss of which plaintiff in error paid him $1,700. It is urged by plaintiff in error that the copy should have been admitted, since it appears from the foregoing facts that the original had been lost. The purpose for which the invoice was tendered is not stated, but obviously it was only competent to establish that Jones bought the car, and as a consequence was the owner, and paid therefor the price indicated by the invoice. [1] It may first be said that the proof failed to show that the original invoice had been lost, and hence no proper predicate for admission of the copy laid, since the substance of the testimony of McGregor was not that it was lost, but that it had been delivered to Jones. The delivery to Jones neither proves the loss of the invoice nor raises a presumption in that respect. [2] It may also be said that, while an invoice might be an incident to a sale of personalty, standing alone it did not evidence that fact. An invoice "is a mere detailed state propriate to a bailment as it is to a sale. It does not, of itself, necessarily indicate to whom the things are sent, or even that they have been sent at all." Dows v. Nat. Ex. Bank, 91 U. S. 618, 23 L. Ed. 214. [3] Finally, it may be said that every fact which could be deduced from the invoice was testified to by Jones, and that his purchase of the car and the price he paid for it was not a disputed issue. For the reasons stated the action of the court in the respect stated does not constitute error. [4, 5] As we have shown, it was in evidence that the Cadillac Automobile Company of Boston had sold to Jones a car of similar model and engine and motor number as the car in controversy, and that plaintiff in error had insured same against and paid a loss thereon for theft, and was entitled by the insurance contract to be subrogated to Jones' right of recovery. Jones' deposition was taken, wherein he testified substantially to the facts recited. In said deposition he was asked, "What became of said automobile?" to which he replied, "It was stolen." also asked, "What was the cause of said company having to pay your loss on said automobile?" to which he replied, "The automobile having been stolen, the Federal Insurance Company paid me the indemnity upon proof of claim. Amount paid $1,700." Upon objection of defendant in error the statement, "It was stolen," in the first answer and the words, "the automobile having been stolen," in the second answer were, over objections of plaintiff in error, excluded from consideration by the jury, on the ground that the answers were legal conclusions. In that connection, in order for plaintiff in error to recover the automobile and automobile and receive the other relief sought, it was necessary to show that the car in controversy was stolen, since its right of subrogation was based on theft of the car. Hence the purpose and importance of the testimony is obvious. The statement by the witness was, in our opinion, inadmissible because purely a conclusion. To say that theft has been committed is obviously the conclusion of the one making the statement. Whether the crime of theft has been committed is to be determined by the facts attending the taking of the property. While the plaintiff in error had paid the insurance as for theft upon the showing made by Jones, the conclusion of the latter, however conscientious and however correct in basis, cannot be the standard for establishing that fact in court. The facts upon which the witness bases a conclusion, and not his conclusion upon undisclosed facts, is the standard, since to admit his conclusion or inference from the facts is but to determine a given issue upon the reasoning of the witness, while the rule is for the witness to give the facts and leave to the judge or jury the function of |