I concur in the reversal, but think it proper to state my opinion that if the automobile in which plaintiff was riding ran into defendant's engine, as the great weight of the evidence went to show, instead of the engine running into the automobile as testified in a way by one witness who saw *Page 86 the accident from a point three-quarters of a mile away, then plaintiff was not entitled to recover on either count, unless the engineer actually saw that the automobile would approach the crossing in such manner as to be unable to stop in the event the locomotive got there first, and, with such knowledge, failed to exert himself properly to prevent the catastrophe. In the last hypothesis defendant would be liable as for subsequent negligence only. I do not understand there was in the evidence any substantial support for such a finding; but, whether so or not, if the facts were as shown by the great weight of the evidence, the default of defendant's engineer in complying with the statute — or his common-law duty to the same effect — was not the proximate cause of plaintiff's injury. It is a commonly recognized principle of law —
"that if a new force or power intervenes, sufficient of itself to stand as the cause of the misfortune, the other must be considered as too remote." Thompson v. L. N. R. R. Co.,91 Ala. 496, 8 So. 406, 11 L.R.A. 146; 29 Cyc. 499, 500.
On that hypothesis of the facts which I am now considering and which I think should be taken into account on another trial, the alleged negligence of defendant's engineer had spent its force — the train head had reached and passed the crossing without meeting an obstruction — when the indisputable negligence of the driver of the automobile, independently of what the engineer had done or omitted to do and efficiently in itself, intervened to produce plaintiff's hurt. In making this statement I assume that the engineer was not aware of the pending collision — a phase of the case to which I have already alluded — and that plaintiff was not responsible for the driver's negligence. No issue was made as to contributory negligence, for the reason, I suppose, that plaintiff was a mere passenger in the automobile and not responsible for the driver's negligence. I think the aspect of the case to which I have referred should be stated, to the end that it be considered on another trial.