The opinion
McCLENDON, j.
I concur in the conclusion that it was error to give plaintiff’s special charge No. 1, and that for that reason the judgment should be reversed and ‘the cause remanded. This charge authorized the jury to base a finding of actionable negligence upon the failure of defendant to stop the train at the “gyp” pit. The evidence conclusively shows that plaintiff was aware of the fact that the train would not stop there upon the occasion in question, whatever may have been the general rule regarding such stop. Failure to stop was therefore not a proximate cause of plaintiff’s injury, and, this appearing from the uncontradict-ed evidence, it was error to submit this issue to the jury.
The other questions presented by the application for writ of error, in my opinion, have been correctly determined by the Court of Civil Appeals.
PHILLIPS, C. J.
The judgment recommended in this case by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.