warn said Cowles that said car was about to be moved in the direction he was, and if you further believe that such acts or omissions, which you find to have been so done or omitted by defendant company's employe or employes in charge of said train, were or was the proximate cause of the death of the said Pellew Cowles, and that said employe or employes of defendant company in charge of said train were guilty of negligence as hereinbefore defined and explained, in doing or omitting to do one or more of such acts or things which you so find to have caused said Pellew Cowles' death, and if you further find from the evidence that said Cowles was not himself guilty of contributory negligence proximately causing or contributing to cause his death; and you further find from the evidence that at the time of the death of said Cowles, the plaintiff, Mrs. C. C. Cowles, was his wife, then plaintiff would be entitled to recover, and you will find for the plaintiff unless you shall find for the defendant on some other point concerning which you have been or may be instructed in this charge; the whole of which you will construe together."

It was established by the uncontroverted facts that deceased, in company with H. W. Browder, started from the freight depot, which was on the east side of three railway tracks, to cross over to the west side, and on account of a number of freight cars standing on the middle track they did not pass straight across the yard, but went to the end of the line of cars, the last of which was a flat car standing several feet from the wagon crossing, and stopped to examine the coupler on the flat car. While thus engaged and while deceased was in the act of kicking the coupler that had been thrown back by Browder, the flat car was backed against deceased, and ran over and killed him.

If appellant knew that deceased was on the track engaged in working with the coupler, it owed him the duty of warning him of the intention to move the car, but if it did not know that he was on the track, it owed him no duty. It is true that it was in proof that it was customary for pedestrians to use any part of the yard in crossing the track, and whilst such use without protest may have given a license to parties to cross the tracks at any point, and may have devolved on the railway companies, using the tracks, the exercise of care towards such pedestrians, it did not create any duty towards those who were using the track not for the purpose of crossing it, but for the examination of the appliances of cars standing on the track. Deceased was not at a crossing when killed, and was not in the act of crossing the track, but was engaged in gratifying an idle curiosity in regard to an appliance of the flat car. The license to deceased was to use any part of the yard for the purpose of crossing the railroad tracks, and for that purpose alone, and only while using the yard with that object in view did the duty to him exist, that is, incumbent upon a railroad company in case of a license. The license to use the tracks for passage from one part of the town to the other was one that is established by the fact that the public had been making such use of them for a number of years and such use had tacitly been acquiesced in by appellant. It was not shown to be a custom, however, for persons

in their passage across the tracks to stop and spend an appreciable length of time in examining and experimenting with the appliances of cars. In so acting deceased was a trespasser pure and simple, and the evidence failed to establish negligence whether looked at from the standpoint of appellant's duty or from that of the contributory negligence of deceased. There is no testimony tending to show that the railroad employes had any knowledge of deceased being upon the track.

In the case of Kelley v. Railway, 31 Northwestern Reporter, 904, it was said by the Supreme Court of Michigan: "The highway crossing is for the purpose of passage from one side of the railroad to the other, and any other use thereof, whether between the tracks or between the rails, is unwarranted."

The presence of deceased upon the track was not because of the fact that any part of the tracks in the yard was used as a passageway, but he was there on other grounds totally disconnected with a passage over the track. As said by the Supreme Court of Ohio in Railway v. Marsh, 52 Lawyers' Reports Annotated, 142: "His right and the liability would have been the same if the track of the railroad company had never been used as a line of travel, or if the injury had occurred while the boy was going to the switch-stand south of the highway, where the railroad was not used as a line of travel, so far as appears in this case. The principle is the same as that held in Kelley v. Columbus, 41 Ohio State, 263, where the court says: "If there had been a business room in the building, or upon another part of the lot, which would have been an implied invitation to the public to go there, it still would not help the plaintiff, when he admits that he did not go upon the lot for any such purpose.”

There is some conflict of authority as to who may claim the benefit of statutory signals, but it is usually held that where the statute does not specifically name the class of persons to whom the duty is owing, it is due only to those who are about to use, are using, or have lately used the crossing, and have held that no others could recover for injuries resulting from a failure to give the signals.

In the case of Harty v. Railway Company, 42 New York, 469, the plaintiff was at a place where he was licensed to go, not a great distance from a street crossing, and it was held that statutes requiring signals to be given on approaching crossings had for its sole object the protection of persons traveling upon the highway at or near the crossing. It was said: "If this company was bound to give these warnings to this man, then every railroad company is bound to do so to every person who may be upon the railroad ahead of a train, although he is not on the track and not in a place of danger." Other authorities supporting this proposition are cited in note to Elliott on Railroads, section 1158, page 1757. To the same effect is Hoover v. Railway, 61 Texas, 503.

The evidence, we think, presents a clear case of contributory negligence. The only witness who was in a position to know the circumstances surrounding deceased at the time of the accident testified that he in company with deceased, walked upon the railroad track near the end

1

of a flat car which was attached to a coal car and eight or ten box cars, all of which were standing on a track in the railroad yards, and stopped to examine a coupler on the flat car, at the request of deceased. Both of the men were behind the end of the car, Cowles standing between the rails and Browder with one foot within the rails and the other without. When Cowles was struck he was standing on one foot, in the act of kicking the coupler, and Browder was leaning over toward him, manipulating the coupler. The accident did not occur on the crossing. Browder swore that before stopping he did not look nor listen for an approaching train, and did not see deceased do so. He did not know whether any signals were given or not. Mr. Cowles was a life insurance agent and had no business in connection with the couplers on the cars. Browder swore that they were occupied with the coupler one or two minutes before the car moved. The least care or caution would have disclosed the fact that an engine was engaged in moving cars on the track on which deceased and Browder were standing.

Because the evidence does not sustain the verdict the judgment is reversed and the cause remanded.

Reversed and remanded.

Writ of error granted and judgment affirmed.

MARYLAND CASUALTY COMPANY V. EULA L. GLASS.

Decided April 9, 1902.

1.-Accident Insurance-Death-Proximate Cause-Anaesthetics.

Where the insurer was liable in case of bodily injury or death sustained through external, violent, and accidental means, including anaesthetics where administered by a regular physician, provided the death should result from any such injury, independent of all other causes, and the insured died while undergoing a surgical operation under the influence of chloroform regularly administered, in an action to recover against the insurer the burden was on the beneficiary to show that the chloroform was proximately the sole cause of the death.

2. Same-Contributing Causes.

The insurer was not liable if the chloroform would not have caused the insured's death had it not been for the appendicitis for which the operation was performed, or the insured died because the chloroform aggravated the effect of such disease, or the disease aggravated the effect of the drug.

3.-Same-Fact Case.

Evidence held to conclusively show, although the verdict of the jury was to the contrary, that the administration of chloroform was not, independently of all other causes, the proximate cause of the death of the insured.

Appeal from Dallas. Tried below before Hon. Thomas F. Nash.

W. J. J. Smith, for appellant.

Turney, Lewis & Lewis, for appellee.

NEILL, ASSOCIATE JUSTICE.-This is an appeal from a judgment rendered in favor of appellee against appellant on an accident policy for $2000.

The policy sued upon contains the following provisions:

"1. In consideration of the warranties made in the application for this policy (copy of which is indorsed on the back hereof) and of ten dollars, the Maryland Casualty Company, of Baltimore, Maryland, hereinafter called the company, does hereby insure M. E. Glass, of Houston, in the county of Harris and State of Texas, hereinafter called the assured, by occupation commercial agent, classified by the company as 'A' special, for the term of twelve months, beginning on the twenty-seventh day of March, 1900, at 12 o'clock noon, and ending on the twenty-seventh day of March, 1901, at 12 o'clock noon, standard time, in the amount of two thousand dollars, principal sum, and weekly indemnity of ten dollars, against bodily injuries sustained through external, violent, and accidental means, as follows: If death shall result from any such injury, independent of all other causes, within ninety days from the happening of the accident causing such injury, the company will pay the principal sum above specified to Mrs. Eula L. Glass, wife of the assured, if surviving."

"5. This insurance does not cover disappearances, nor injuries, fatal or otherwise, resulting from poison or anything accidental or otherwise taken, administered, absorbed, or inhaled (anaesthetics administered by a regular physician excepted); nor injuries fatal or otherwise received while or in consequence of having been under the influence of or affected by or resulting directly from intoxicants, narcotics, vertigo, sleep-walking, fits, hernia, or any disease or bodily infirmity. But it is understood this policy covers the assured according to the terms thereof in the event of his injury from freezing, sunstroke, drowning, or choking or swallowing."

The application of M. E. Glass in writing for said policy attached to and made a part thereof contains the following: "I hereby apply for insurance against bodily injuries caused solely by violent, external, and accidental means, to be based upon the following statement of facts, which I warrant to be true."

It is undisputed that deceased died on the 14th of April, 1900, while undergoing a surgical operation for appendicitis; that preparatory to and during the operation, chloroform, an anaesthetic, was administered him by a regular physician, and that he was under the influence of it when he expired. The only question of fact to be determined is, did his death result from an injury sustained through chloroform independently of all other causes? The jury having found for appellee upon this issue, their verdict shall not be disturbed if the evidence is reasonably sufficient to support their finding. If the evidence does not reasonably tend to support the verdict the judgment entered upon it should be reversed.

Before considering the evidence upon this question, we will state our

understanding of the law which should guide and govern us in its solu

tion.

It will be noted that by the fifth paragraph of the policy "anaesthetics administered by a regular physician" are excepted from such injuries as are not covered by the insurance. It may, therefore, so far as this case is concerned, be regarded as an insurance against death resulting from chloroform, independent of all other causes.

The burden of establishing the fact that the death of M. E. Glass resulted, independent of all other causes, from chlorofrom administered to him is on the plaintiff. In other words, she must prove that the anaesthetic was proximately the sole cause of his death. If his death was caused by it alone, the appellant by the policy is liable to the appellee in the principal sum therein specified. But if he was afflicted with disease which caused or directly contributed to his death, the company would not be liable, though chloroform might have been a cause concuring with his affliction in producing death. If he was suffering from appendicitis, as is shown by the indisputable evidence, and if the anaesthetic would not have caused his death had it not been for such affliction, but he died because the chloroform aggravated the effects of the disease, or appendicitis aggravated the effect of the drug, the company would not be liable under its contract. For in either event appendicitis and chloroform would be concurring and inseparable agents proximately contributing to his death, and it could not have been the result of an injury from anaesthetic, independent of all other causes. Association v. Fulton, 79 Fed. Rep., 423; Association v. Shryock, 73 Fed. Rep., 775; Westmoreland v. Insurance Co., 75 Fed. Rep., 245; Hubbard v. Association, 98 Fed. Rep., 930; Insurance Co. v. Meleck, 65 Fed. Rep., 178; Insurance Co. v. Selden, 78 Fed. Rep., 285; Insurance Co. v. McConkey, 127 U. S., 661, L. Ed., book 32, 308.

Now as to the evidence. It is shown beyond question that the assured was suffering from appendicitis which had made such progress as to render his dissolution inevitable within a very short time unless relieved by a surgical operation. Physicians, upon consultation, concluded that the disease might possibly be checked and his life saved by surgery. The consent of his family being given the doctors to undertake the operation, the deceased was placed upon the operating table, the anaesthetic properly administered by a regular physician (which had the ordinary and desired effect), and the operation was commenced. They made an incision over the region of the appendix about four inches long and the depth of the abdominal wall and reached the appendix, which was found to be sloughing off and gangrenous. A ligature was run through and tied around it and the diseased portion cut off, and then the abdominal cavity was washed out with a hot solution, his bowels restored to their proper position and the wound nearly sewed up, lacking only two stitches, when he died,-chloroform having been administered. at intervals during the operation.

Vol. 29 Civil-11.