dissehting.
I am unable to find reversible error in the charge complained of. I may admit that in the abstract the particular method of protection against accidents is a question for the railroad company or some branch of the government other than the petit jury, but this admission is not fatal upon the case at bar.
We must give some weight to the issues voluntarily made by the parties to the record. The plaintiff here alleged specific negligence in “the 'failure to maintain gates and a sufficient number of watchmen to warn and protect pedestrians and the plaintiff against approaching trains” and the defendant accepted the issue so tendered by its plea of not guilty. The court charged in effect that before the plaintiff could recover, the jury must find that the defendant did not maintain gates and watchmen and that such precautions were under the circumstances reasonably required. There was no motion to strike this tender of issue nor was any objection made to testimony in its support, nor was a charge requested bearing upon its impropriety.
Further there is, to my mind, no evidence approaching *100proof of any other reasonable care and cahtion due to passers along this main thoroughfare of the City of Live Oak, crossing ten tracks more or less blocked as to view by standing cars, with trains almost constantly passing. No other passage was provided than the surface crossing. There was one flagman present, who was watching a train of another road, with his back to this track, and who did not see the girl until the engine was in ten feet of her. The engineer and others say the bell was ringing, but his lookout did not disclose the presence of the child upon the track, owing he says to a curve and obstruction of standing cars on another track; he says further that his fireman on the other side of the engine had a less obstructed view and was looking out; the fireman .was not called, but if he saw the child, the engineer at the throttle was not notified and the engine could have stopped, as it did stop, immediately after the accident, in fifteen feet.
It seems to me clear that the objection to the charge is theoretical and should not avail. The jurors were not told to choose between two reasonably effective means, but in the absence of any proof that the railroad company had used all reasonable care and diligence as declared by statute, in other words that degree of care and diligence, due to the exigencies of the occasion, they were told that before the plaintiff could recover, they must find that the hind of care and diligence accepted by the parties as the degree of care and diligence then and there due, was reasonably necessary under the evidence.
Hocker, J., concurs in the foregoing dissent.