The averments of the petition presented issues relating to the negligence of the defendant and the diligence of the plaintiff, which were appropriate íor determination by a jury, and it was not error to overrule a demurrer to the same.
Judgment affirmed.
All the Justices concur. The grounds of demurrer were, that no cause of action was set forth; that the petition showed that the injury was the result of the plaintiffs own carelessness and negligence, and could have been avoided by the exercise by him of ordinary and reasonable diligence; that from the instant he manifested an intention "to cross the railroad he had means and- opportunity, superior to those of defendant, of discovering and avoiding the danger of the attempt to cross, and the defendant had ño sufficient means or opportunity of discovering and avoiding the same; that if the collision was not the result of the plaintiff’s own and sole negligence, it appears to have been the result of unavoidable accident; that it was impossible for the collision to have occurred in the manner and circumstances alleged; that it does not appear how or why it would have been impossible to stop the automobile before it would be on the track, or safer to attempt to cross than to stop; aud that it does not appear that an effort to stop the engine and cars could have availed to-prevent the collision. Goetchius & Chappell, for plaintiff in error. J. H. Martin, contra.