Upon reconsideration of this case on rehearing, the majority of the court, including the writer, have become convinced that, under the contract between the two Railroad Companies and the evidence as to the physical facts, the court below did not commit error by giving those instructions to the jury which assumed the joint agency of Murray, the signalman, who was employed by the companies jointly to guard a common zone of danger, in the protection of which they each had an interest.
I am inclined to think that the question of whether Mrs. Ebert or her husband were guilty of contributory negligence was, under the evidence, a question for the jury. The jury evidently found that the plaintiff was guilty of some degree of contributory negligence. This is indicated by the amount of the verdict.
While travellers along a street approaching a railroad crossing may, according to the facts and circumstances of the particular situation, as a general rule, be justified in relying upon the signals given by the Railroad Company or Companies as to whether they should stop or should proceed across the crossing, I am not prepared to say that the existence of such a signaling system would in all cases relieve the traveller from all responsibility for the use of his own faculties of sight and hearing to protect himself from danger. There may be cases where the physical facts of the situation renders it both reasonable and necessary that the traveller concentrate his attention entirely upon the signals, there being little or no opportunity for him to judge the question of safety or danger by the use of his own faculties, due to obstructions to the view the rapidity of the approaching train outside his radius of vision, or other like handicaps. As above stated, on the evidence in this case I think the question of contributory negligence was one for the jury to determine. *Page 667
For these reasons I concur with the majority that the judgment of the trial court should be affirmed.
Affirmed.
WHITFIELD AND TERRELL, J.J., concur.