At a former day of the present term of this court we affirmed the judgment of the trial court in this cause, and in due time appellant filed its motion for a rehearing, and on this day a majority of this court reached the opinion and conclusion that the motion should be overruled, and it will be so ordered.
The original opinion affirming the judgment was prepared by Mr. Associate Justice O'Quinn, and I at that time concurred in the disposition then made of this case. I have concluded, however, since very carefully considering appellant's motion for rehearing, that we were in error in the original opinion in holding against appellant's contention that the jury's finding acquitting the deceased, C. C. Crow, of contributory negligence was against the overwhelming preponderance of the evidence touching that issue, and I now think that this court should sustain appellant's contention on that point. I am now thoroughly convinced that the evidence as a whole clearly showed that the deceased, C. C. Crow, at the time he went upon appellant's railroad track, failed to use any degree of *Page 97 care whatever to ascertain whether or not a train was approaching the crossing at which he met his death. I think this was established by not only positive evidence, but by all the circumstances that were in evidence bearing upon the issue of contributory negligence, and therefore I feel that it is my duty to dissent from the conclusion of my associates that the motion for rehearing should be overruled, and it is my opinion that the motion should be granted, and the judgment be reversed, and the cause be remanded.
I think that, under some of the earlier decisions of the Supreme Court of this state, the deceased, C. C. Crow, was guilty of contributory negligence as a matter of law, but, as I construe some of the more recent decisions of our Supreme Court and the Commissions of Appeals, we could not hold that the deceased was guilty of contributory negligence as a matter of law. The earlier decisions that I have reference to on this point are I. G. N. Railway Co. v. Edwards, 100 Tex. 23, 93 S.W. 106; Boyd v. Railway Co., 101 Tex. 411, 108 S.W. 813; and Railway Co. v. Price (Tex.Com.App.) 240 S.W. 524. There were many earlier decisions than these according to which the deceased in this case would be guilty of contributory negligence as a matter of law.
But under the conclusion and holding reached by our Supreme Court in the case of Trochta v. M., K. T. Railway Co., 218 S.W. 1038, and the holding of one of our Commissions of Appeals in H., T. Railway Co. v. Barron, 249 S.W. 825, and other comparatively recent decisions following the Trochta and Barron Cases, I think we could not hold in this case that the deceased, C. C. Crow, was guilty of contributory negligence as a matter of law.
It was not my purpose in expressing my dissent from the conclusion of the majority in overruling the motion for rehearing in this case to write an opinion at any length, but merely to express the reason for my dissent, and I shall refrain from doing so.
The motion for rehearing is overruled.