I do not think that the evidence in this case would have sustained a verdict based upon the theory that the negligence of the defendant was the sole proximate cause of the plaintiff's injury. My view is that both plaintiff and defendant were, under this evidence, guilty of some negligence which operated concurrently to the causation of the collision; at least, that the jury could reasonably have reached this conclusion. Plaintiff knew the ice plant was so located as to obstruct his view down the tracks until he was within about twelve or fifteen feet of the main-line track. The collision occurred about noon on a clear day. If plaintiff had exercised ordinary care, commensurate with the circumstances, he could have avoided the collision. On the other hand, defendant must have known that this was a very dangerous crossing, and it was a question for the jury as to whether or not the defendant's train was being backed across this street crossing *Page 467 at a negligent rate of speed, in view of the serious obstruction of the vision of persons traveling in the direction which plaintiff was traveling, caused by the location of the ice plant so close to the tracks, as well as to the street which crossed the tracks. It is true that the positive evidence of several witnesses showed that the air whistle on the rear of the backing train was being blown. The negative testimony of the plaintiff to the effect that he never heard it could not impair the probative weight of the positive evidence on this point. But when the dangerous character of the crossing is considered, I think there was a jury question presented as to whether the speed of the train was such as to constitute negligence under the circumstances, and also whether it was a concurring proximate cause of the collision.
BUFORD, J., concurs.
Justices TERRELL and THOMAS not participating as authorized by, Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
ON PETITION FOR REHEARING