This is an appeal from a jury verdict for the plaintiff in a case arising out of the collision of plaintiff's car with a train at a Texas grade crossing.

Southern Pacific contends that the issue of contributory negligence of the plaintiff under Vernon's Ann.Tex.Civ.Stat. Art. 6701d, 86 (Vernon ed. 1960),1 was not properly submitted to the jury. In his oral charge, to which the railroad makes no objection, the judge instructed on the elements of sub-sections (c) and (d) of 86, then he submitted as one of the special interrogatories, 'Was Manuel Montalvo negligent in failing to stop within 50 feet, but not less than 15 feet, from the nearest rail of the railroad tract.' The railroad asserts that the court was required to submit specific interrogatories on the presence of absence of the factual incidents covered by sub-sections (c) and (d) and that contributory negligence was then a question of law for the court to be based on the answers to the factual inquiries and could not be submitted to the jury.2 Numerous Texas state authorities are cited concerning special issue submission. But the district court has the broad authority given by Fed.R.Civ.P. 49 and is not bound by state procedures on special issues. 5 Moore, Federal Practice, PP49.01-.03 (2d ed. 1967). Negligence is a factual determination for the jury, Ratigan v. New York Cent. R.R., 291 F.2d 548 (2d Cir.), cert. denied, sub nom. New York Cent. R.R. v. Interstate Commodities, Inc., 368 U.S. 891, 82 S. Ct. 144, 7 L. Ed. 2d 89 (1961).3

The rationale of the railroad is that if the factual matter recited in sub-section (c), or that in (d), is determined by the jury to exist the driver is under an absolute duty to stop within 50 feet of the crossing, and failure of the driver to do so requires a conclusion of contributory negligence per se, so there can be no basis for jury consideration of whether plaintiff was guilty of contributory negligence. As to sub-section (c) this theory ignores the fact that the jury in answer to a special interrogatory found that the engine when approaching within approximately 1500 feet did not emit a signal audible from such distance. As to sub-section (d), the Texas cases do refer to failure of the automobile driver to stop when the train is plainly visible and in hazardous proximity to the crossing as contributory negligence per se. Southern Pac. Co. v. Alex, 411 S.W.2d 413 (Tex.Civ.App.1967); Missouri-Kansas-Texas R.R. v. McFerrin, supra. But that principle does not preclude submission to the jury, where the evidence raises it, of the question whether the driver could or could not stop his automobile within the statutory stopping area by the exercise of due care after the train became visible and in hazardous proximity to the crossing. Southern Pac. Co. v. Alex, supra, refers to this as the burden on the driver of establishing that his violation of the statute was legally excusable because of impossibility of complying with it. 411 S.W.2d at 416. In Texas & N.O.R.R. v. Dairyland Transp. Corp., 266 F.2d 283 (5th Cir. 1959), this court distinguished the McFerrin case as follows:

In the McFerrin Case, however, there was no testimony that when the motorist first saw the train he could not have brought his automobile to a stop within the statutory distance. Apparently that question was not litigated because the plaintiff chose rather to attempt to prove that the deceased actually did stop his automobile. There is sufficient evidence in the present case from which the jury could find that the approaching train first became plainly visible to the truck driver at a time and under circumstances when, by the exercise of ordinary care, he could not stop within the statutory area.

The elements of surprise and of the driver having acted in an emergency were not developed in the McFerrin case as they have been in the present case.

Id. at 288. See also Warren Petroleum Co. v. Thomasson, 268 F.2d 5 (5th Cir. 1959). In Ft. Worth & Denver Ry. Co. v. Red Ball Motor Freight, Inc., 384 S.W.2d 729 (Tex.Civ.App.1964), the court cited Dairyland with approval in affirming a verdict for the plaintiff where there was evidence that from the point on the highway at which the plaintiff could know that the train was approaching and in hazardous proximity he could not have stopped short of the crossing.

The evidence in the present case did raise an issue of inability to stop, which the trial judge in his discretion could submit to the jury for determination as a separate question of fact or with appropriate oral instructions as part of the inquiry whether plaintiff was himself guilty of negligence.4

The loss of future earning capacity was properly submitted to the jury as an element of damages. There was evidence of the nature of the injuries, and of the type of employment engaged in by plaintiff, from which the jury could infer loss of earning capacity.

The railroad also specifies as error that there was not proper proof of the reasonableness of medical bills incurred for the services of doctors who were called into consultation by the treating physician. The treating physician testified that the charges of the consulted doctors were reasonable, and there was evidence that he was familiar with the services they had performed. There is no rule that as a matter of law each doctor who performs services must appear and personally testify to the reasonableness of his charge.

Affirmed.