ON MOTION FOR REHEARING. Respondent in his motion for rehearing insists that we were in error in holding the trial court was not justified in granting a new trial because of instruction number three given on behalf of the defendant. On the motion for rehearing respondent has the following to say:
"The Court erred in holding that defendant's instruction No. 3 was proper, when it did not hypothesize any facts for the jury to find before permitting the jury to say that the driver of the automobile was guilty of negligence, either in failing to listen, failing to look or in failing to stop, when said instruction should have required the jury to find: (1) that a bell or signal was sounded so that the driver of the automobile could have heard it had he listened; (2) that by looking the driver could have seen the on-coming train in time to avoid a collision therewith; and (3) that the driver of the automobile was not required to stop, when approaching said crossing, unless he saw or heard, or in the exercise of the highest degree of care on his part could have seen or heard, the on-coming train in such close *Page 923 and dangerous proximity to said crossing, in time, thereafter, in the exercise of the highest degree of care on the part of the driver of the automobile, to have avoided said collision by stopping his said automobile, and that the driver did fail so to do, and that in thus failing he was then and there guilty of negligence, and that said negligence was the sole cause of the collision."
The opinion probably should have been more specific and clear on the point that plaintiff relied entirely upon the alleged negligence of the watchman for a recovery. That was the only charge submitted by plaintiff's instruction. Not only that, but plaintiff in his testimony absolved the train crew from negligence. Note plaintiff's evidence on this point:
"Q. Did you tell Mr. Greenstreet, the fireman, that you did not blame any of the trainmen in any way for this accident? A. No.
"Q. That it was not their fault? A. No.
"Q. Whose fault do you consider it was? A. The watchman.
"Q. Only the watchman? A. Yes.
"Q. Is that right? A. Yes, sir.
[359] "Q. You did not blame the engineer? A. No.
"Q. You did not blame the fireman? A. No.
"Q. You blame no one but the watchman? A. The watchman.
"Q. You know, don't you, it is the engineer's duty to blow the whistle for the crossing? A. Oh, yes.
"Q. And ring the bell? A. Yes.
"Q. And that he has charge of those devices on the engine? A. Yes.
"Q. And you did not hear either the whistle or bell? A. I heard it when Mr. Jackson got out, then I heard the whistle, and I think I heard the bell also at that time.
"Q. But would you say that this engine and bell did not ring half mile away — the whistle did not blow from a half mile clear to the crossing? A. I did not hear it."
Note that plaintiff heard the whistle and bell of the train as Mr. Jackson left the car. Mr. Jackson's testimony as to where he got out of the car was as follows:
"Q. Now, there is a road — I think there is no dispute about this — there is a road that runs to the right between the building that you have described and the tracks? A. Yes, sir.
"Q. Will you state, if you can, where it was with reference to that road, that you left the automobile? A. Well, I landed on the road, I would say somewheres near the center of the road and south edge of the road."
. . . "Q. You mean you were forty or fifty — A. I imagine the point I alighted from the machine was between forty to fifty feet from the railroad tracks, sir. *Page 924
"Q. From the first track? A. Yes, as near as I can remember."
Since plaintiff did not place any blame on the train crew and his evidence absolved them from negligence, he was not entitled to a verdict based upon a theory that the train crew may have been negligent. Instruction number three required the jury to find, before authorizing a verdict for the defendant, that the negligence of the driver of the car was the cause of the collision and that the defendant's negligence, if any, did not contribute thereto. Under the facts of the case the instruction was not erroneous. Respondent overlooks the law that drivers of cars must exercise the highest degree of care when approaching a railroad crossing. That means that the driver must have the car under control so as to be able to stop in care of danger. It is evident that the driver of the car in question was not exercising the highest degree of care, in fact he was negligent as a matter of law. He did not or could not stop even though Mr. Jackson admonished him of the approaching train when the car was over fifty feet from the track upon which the train was traveling.
The motion for rehearing is overruled.