On Motion for Rehearing. On further consideration of this case on the very able motion for a rehearing filed by appellee, and a careful review of the authorities cited, we are of the opinion that we are in error in holding that because appellee, under the undisputed evidence, was guilty of contributory negligence as a matter of law, in that the evidence of appellee and the surrounding facts and circumstances show that appellee went in front of the moving train under circumstances which present no excuse for his not discovering it in time to have avoided the collision, and in violation of the duty imposed by article 820l, Penal Code, the trial court should have instructed a verdict for the appellants.
The acts of negligence assigned by appellee, as proximately causing his injuries, consist of failure to give the statutory signals for the Copia street crossing, and the running of the train at a speed in excess of that permitted by a city ordinance of the city of El Paso. The issues of the above two negligent acts on the part of appellants and as proximately causing appellee's injuries are sufficiently sustained by the evidence to require their submission to the jury, and the trial court submitted each of said issues for the jury's findings.
The appellants pleaded general denial and contributory negligence on the part of appellee proximately causing or contributing to cause his injuries, in that appellee drove his automobile upon the railroad track at the street crossing at a reckless, dangerous, and unlawful rate of speed, and immediately in front of the approaching train, without looking or listening for such train, and that appellee's injuries were the sole and proximate result of appellee's own negligence. The court, by appropriate instructions, submitted the above issues of contributory negligence and proximate cause, with explanations of each, to the jury under a general charge calling for a general verdict. The jury found for the appellee, thus in effect holding that appellants were guilty of negligence in one or both of the negligent acts charged, and that such negligence was the proximate cause of his injuries, and in favor of appellee on the issues of contributory negligence and proximate cause.
In the motion for rehearing one of appellee's contentions in effect is that under the evidence and all of the facts and circumstances disclosed by the evidence under which appellee went upon the railroad track in *Page 747 front of the moving train, omitting under this proposition negligence under article 820 l, Penal Code, appellee was not guilty of negligence as a matter of law; that the issue of negligence under the facts disclosed by the record was an issue of fact to be found by the jury and not a matter of law to be determined by the trial court or by this court. As sustaining the holding announced in the opinion, reference is made to Railway v. Edwards, 100 Tex. 22, 93 S.W. 106. In that case it is stated in the opinion:
"Plaintiff admits that, before stepping on the track, he neither looked nor listened for the train, although he was familiar with the crossing, and knew of the frequent passing of trains, and that he could have seen and heard it, had he done so."
There, it is said, Edwards relied alone upon the failure to give the statutory signals, and because he did not hear them he did not look for the train nor pay any attention to the noise it made, though in approaching the railroad he approached it obliquely until he came near the crossing, when he turned with the road crossing the track. The Supreme Court said that case was easily distinguished by its facts from cases presenting issues for the jury as to whether the care taken was sufficient. We think the case referred to is distinguishable by its facts from the instant case. On the care used to discover the approach of the train here the appellee testified:
"My hearing is all right. I was looking out when I approached that track. I cross that crossing repeatedly. I glanced toward town; there was a passenger train comes out down there along that time of the night, and when I glanced the other way that train was right on me. I didn't hear it. * * *" (On cross-examination.) "Yes, sir, I was listening for it."
It seems the evidence is sufficient to take the case to the jury on the issue of negligence vel non. The test on the issue of negligence under this feature of the case to be applied by the jury was: Would an ordinarily prudent person in the exercise of care for his own safety have gone upon the railroad track under the same or similar circumstances? The issue was one of fact and not of law. The jury having resolved the issue in appellee's favor, we are bound by it, unless reasonable minds might differ as to the conclusion to be drawn therefrom. If there was no negligence on the part of appellee under the above facts in failing to look and listen for the approaching train, as found by the jury, we need not look for a proximate cause under that issue.
It is conceded by appellee in his amended motion that he was guilty of negligence per se in failing to reduce the speed of his automobile to within 6 miles an hour in approaching the crossing, the crossing at Copia street being partly obscured, and in view of such admission we will omit a discussion of the application of article 820l, Penal Code. The question then is presented: Does such negligence bar a recovery as a matter of law? Here the issue of proximate cause becomes a pertinent fact for the jury. Where an act is negligence per se because violative of a statutory duty, the same rules must be applied as in negligence vel non in determining the issue of proximate cause. In Keevil v. Ponsford et al. (Tex.Civ.App.) 173 S.W. 518, Keevil was riding his motorcycle in excess of the speed permitted by an ordinance of the city of El Paso, and was injured by running his motorcycle against a wagon left unlighted in the street by the defendants. In that case this court, speaking through Justice Higgins, held that the trial court was not warranted in assuming as a matter of law that Keevil's negligence was a proximate contributing cause of his injury, and, so assuming, direct the issue of proximate cause by a peremptory charge. It was there said:
"Whether an act be negligence per se, because violative of a duty imposed by statute or ordinance, or be negligence because in violation of some duty under general principles of law, the same rules must be applied in determining the question of proximate cause."
In Railway v. Eaton (Tex.Civ.App.) 222 S.W. 318, Eaton was injured while standing on the running board of a jitney in the city of Dallas while in operation, in violation of an ordinance of that city, by coming in collision with a street car. In that case Judge Boyce for the Amarillo court held that the negligence on the part of Eaton would not bar recovery for injuries resulting from the negligent act of the defendant street railway company, unless Eaton's negligence was a proximate cause of the injury, and that the question of proximate cause is one of fact for the jury, unless the facts are such that reasonable minds might not differ as to the conclusion to be drawn therefrom. It was further held in that case that the same principles of law governing the application of the law of proximate cause in the ordinary negligence case are applicable in cases of contributory negligence. Now, in the case at bar, the active cause which produced the injury, as found by the jury, was the negligent acts of the appellants in running the train at a speed in excess of that permitted by the city ordinance, or in not giving the statutory signals for the crossing, or both. This was a question to be determined by the jury from all of the evidence. We think reasonable minds might not disagree to such conclusion, under the evidence and the facts disclosed by the record. Where a plaintiff and defendant are each guilty of negligence, it is a question of fact for the jury as to which negligence is the proximate cause of the injury. This is well established by the following cases. T. *Page 748 N. O. R. Co. v. Harrington (Tex.Civ.App.) 235 S.W. 188; Wells Fargo v. Benjamin, 107 Tex. 231, 179 S.W. 513; Trochta v. Railway Co. (Tex.Com.App.) 218 S.W. 1038.
The motion for rehearing is granted and the case affirmed.