With facts and circumstances such as these before us, we must reject as wholly barren of any probative value the statement of plaintiff and his companion that they looked to the west as soon as they came from behind the building and saw no train. If they looked, they must have seen the train, since, as we have said, it could not have been more than 200 feet away, and there was no obstruction to their line of vision. It has been decided again and again by the courts of last resort in this state that, when the testimony of witnesses is clearly incompatible with the indisputable physical facts and laws of the situation, courts will not hold such testimony sufficient to raise an issue of fact, but will disregard it as a thing palpably false. Plaintiff either did not look in the direction of the advancing train, or, looking, did not give heed to what he saw. In either case, he was guilty of negligence which will preclude him from a recovery in this action.

But it is argued that he was justified in presuming, from the absence of the watchman, that the way was clear, and, further, was justified in presuming that a train would not be run at a higher rate of speed than six miles per hour. The absence of the watchman, though it may have indicated to plaintiff that he was in his "dog house," and that the crossing was clear, gave plaintiff no right to shut his eyes and rely implicitly on the presumption that the watchman was at his post and was doing his duty. A railroad crossing is a place of danger, is in itself a warning signal, and in approaching it a traveler on a public street must always make reasonable use of his senses to protect himself. When from a position of safety he may see and hear, he must look and listen, since this is what an ordinarily prudent person would do in his place. Edwards v. Railway, 94 Mo. App. 36, 67 S. W. 950; McNamara v. Railway, 126 Mo. App. 152, 103 S. W. 1093. Plaintiff had no right to rely on the conclusion he might have drawn from the absence from view of the watchman, and his own statement of what he did shows that he did not act on it. He says he did look, and no train was in sight, and he is bound by this admission that he did not permit himself to be lulled into a false sense of security by the

presumption now invoked. Pertinent to the discussion of the question as to whether he was entitled to indulge in any presumption at all from what he saw at the crossing is the following extract from the opinion of the Supreme Court in Mockowik v. Railroad, 196 Mo. 550, 94 S. W. 256: "Presumptions,' as happily stated by a scholarly counselor, ore tenus, in another case, 'may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.' That presumptions have no place in the presence of the actual facts disclosed to the jury, or where plaintiff should have known the facts had he exercised ordinary care, is held in many cases, of which samples are: Reno v. Railroad, 180 Mo., loc. cit. 483, 79 S. W. 464; Nixon v. Railroad, 141 Mo., loc. cit. 439, 42 S. W. 942; Bragg v. Railroad, 192 Mo. 331, 91 S. W. 527. To give place to presumptions, on the facts of this case, is but to play with shadows and reject substance."

On the subject of whether plaintiff was entitled to assume that the train would not be run at an excessive rate of speed, we repeat what we said recently in Grout v. Railway, 125 Mo. App., loc. cit. 559, 102 S. W. 1028: "He was justified in indulging in this presumption; but, as we have recently declared in a number of cases, this did not absolve him from the performance of the duty of attending to his own safety. He had no right to rely solely on a presumption, but should have used his senses to acquaint himself with the actual circumstances open to his observation, and, had he done this, it is very clear he would not have entered into danger. Had he looked at the car with any degree of attentiveness, he could have seen that it was coming at a high rate of speed, and, had he looked again before entering the sphere of danger, he would have known that it was highly dangerous for him to attempt to cross. The thing that brands his conduct as censurable in law is the fact that with the car in striking distance, and with every opportunity to protect himself, he blindly risked his life and limb on a mere presumption that others would be more careful than he."

The judgment is reversed. All concur.

MARTINEZ et al. v. CITY OF DALLAS. (Supreme Court of Texas. Nov. 4, 1908.) Error from Court of Civil Appeals of Fifth Supreme Judicial District. Action by the City of Dallas against P. P. Martinez and others. There was a judgment of the Court of Civil Appeals (109 S. W. 287), affirming a judgment for plaintiff, and defendants bring error. Affirmed. W. A. Kemp, for plaintiffs in error. J. J. Collins and Jno. C. Robertson, for defendant in error. WILLIAMS, J. After a careful examination of the case and the authorities relied on by the parties, we have concluded that the Court of Civil Appeals, whose opinion is reported in 109 S. W. 287, was right in holding that the plat recorded by Ervin of his addition to the city of Dallas showed on its face a legal dedication of the land in controversy for a public way, and justified the trial court in so instructing the jury. The following authorities clearly sustain the ruling: City of Indianapolis v. Kingsbury, 101 Ind. 209, 51 Am. Rep. 749; Strunk v. Pritchett, 27 Ind. App. 582, 61 N. E. 973; City of San Francisco v. Burr (Cal.) 36 Pac. 771; Hanson v. Eastman, 21 Minn. 509; Lamar Co. v. Clements, 49 Tex. 354. We think, also, that the court was right in holding that the descriptions in the two deeds, made before the conveyance to Over and to Ervin's addition, must be taken as referring to the map of his addition, which he had shortly before caused to be recorded, and that this justified the further holding that it was not thereafter in his power to revoke the dedication by the_last-named conveyance. City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924. The judgment will therefore be affirmed. Affirmed.

BROOKS v. STATE. (Court of Criminal Appeals of Texas. Oct. 28, 1908.) Appeal from Bowie County Court; Sam H. Smelser, Judge. F. M. Brooks was convicted of an offense, and he appeals. Affirmed. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. There is no statement of facts nor bills of exception in the record, and the matters complained of in the motion for a new trial, in the absence of the evidence, cannot be reviewed. The judgment is affirmed. RAMSEY, J., absent.

MITCHELL v. STATE. (Court of Criminal Appeals of Texas. Nov. 18, 1908.) Appeal from District Court, Brazoria County; A. E. Masterson, Special Judge. Will Mitchell was convicted of murder, and he appeals. Affirmed. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J. Appellant was indicted in the district court of Brazoria county, charged with the murder of one Louis Wood. On trial he was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a period of 50 years. The case comes to us without any bill of exceptions and without a statement of the facts. The indictment charges an offense. There is no question presented in the record which, in view of the absence of the statement of facts, we can review. It must therefore result that the case must be affirmed, which is accordingly

PROTHO v. STATE. (Court of Criminal Appeals of Texas. Oct. 28, 1908.) Appeal from District Court, Marion County; P. A. Turner, Judge. Joe Protho appeals from a conviction. Affirmed. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of burglary; his punishment being assessed at five years' confinement in the penitentiary. The questions suggested for revision in the motion for a new trial cannot be revised or reviewed. The evidence is not in the record, and without the statement of facts the matters complained of are not in condition to be intelligently reviewed. As the record is presented, the judgment is affirmed.

RAMSEY, J., absent.

REVIOUS v. STATE. (Court of Criminal Appeals of Texas. Nov. 18, 1908.) Appeal from District Court, Erath County; W. J. Oxford, Judge. John Revious was convicted of assault with intent to rape, and appeals. Reversed and remanded. Eli Oxford and J. M. Carter, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J. Appellant was convicted in the district court of Erath county on a charge of assault with intent to rape one Ethel Moates, from which conviction he appeals to this court, and seeks a reversal of such judgment of conviction upon several grounds. We have concluded that the evidence, while showing the most reprehensible and outrageous conduct on the part of appellant, does not make a case of assault with intent to rape. To demonstrate the correctness of this judgment would require a recital of all the facts, which are neither creditable to the appellant nor to human nature. We believe the precedents on this question are sufficiently illustrated by the facts found and stated in other opinions, and that it could serve no good and useful purpose to burden our judicial records with the nauseating details of the evidence in this case. We desire to state, however, that if, in our judgment, the testimony was sufficient to sustain the conviction, there was no error upon the trial for which the case should be reversed. Believing the facts insufficient to sustain the verdict, we are unwilling to let the judgment of conviction stand. It is therefore ordered that the judgment of the court below be, and the same is hereby, reversed and remanded for further proceedings.

TAYLOR v. STATE. (Court of Criminal Appeals of Texas. Nov. 18, 1908.) Appeal from Criminal District Court, Dallas County; W. W. Nelms, Judge. Archie Taylor was convicted of burglary, and he appeals. Affirmed. F. J. McCord, Asst. Atty. Gen., for the State. BROOKS, J. Appellant was convicted of burglary, and his punishment assessed at five years' confinement in the penitentiary. There is neither bill of exceptions nor statement of facts in this record. No error is made manifest, and the judgment is in all things affirmed.

E. S. FLINT & CO. v. GODWIN. (Court

as.

Nov. 18, 1908.) Appeal from Milam County Court; John Watson, Judge. Action between J. T. Sneed and others and the San Antonio & Aransas Pass Railway Company and others. From a judgment for the San Antonio & Aransas Pass Railway Company and others, J. T. Sneed and others appeal. Affirmed. Thos. V. Adams and Freeman & Morrison, for appellants. Henderson & Lockett, for appellees.

FISHER, C. J. We find no error in the record, and the judgment is affirmed.