dissenting. In considering whether a petition is good as against a general demurrer the allegations of the petition must be considered as true; and, so considering them in this case, the writer can not say that the petition does not set out a cause of action. The material allegations of the petition are set out in the opinion of the majority of the court. The defendant can not admit all that is alleged in the petition and escape liability. These allegations are of such a character as to require a submission to the jury of the issues raised. In the petition it is alleged that the defendant was negligent in several particulars. In While v. Seaboard Air-Line Railway, 14 Ga. App. 139 (15) (80 S. E. 667), this court held: “Questions of negligence are for the jury alone, and the determination of the proximate gauge is involved in and *582essential to the ascertainment of what negligence, as well as whose negligence, the injury is properly to be attributed to. A court can no more determine upon an issue as to what particular act or circumstance was the proximate cause of an alleged injury than it can determine that the same particular act was an act of negligence; for the jury might determine that the act which the court held was the proximate cause was not negligence, while they might be of the opinion that an act adjudged not to be the proximate cause of the injury was negligence.” And see Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Davis v. Smiley, 33 Ga. App. 508 (2) (126 S. E. 904) ; Howard v. Savannah Electric Co., 140 Ga. 482, 486 (79 S. E. 112). In Term., Ala. & Ga. Ry. Co. v. Neely, 27 Ga. App. 493 (108 S. E. 630), Judge Hill, in discussing certain instructions which the court refused to give to the jury, said: “Such instructions would have been fatally afflicted with two infirmities, and, if given as requested, would have been reversible error. First, it has never been held in this State that it constituted negligence in one approaching a crossing over a railroad track to fail to stop, look, and listen before crossing. To the contrary, see: Bryson v. Southern Ry Co., 3 Ga. App. 407 (3), 409 (59 S. E. 1124) ; Columbus R. Co. v. Peddy, 120 Ga. 589 (5) (48 S. E. 149); Seaboard Air-Line Ry. v. Blackwell, 16 Ga. App. 504 (85 S. E. 686). There are many other decisions both of the Supreme Court and of this court to the same effect. Secondly, the question of negligence in such circumstances is always one for the jury, and, unless the act complained of,as negligence is negligence per se, the trial judge can not instruct the jury as to what facts would constitute negligence. This is an issue to be determined by the jury according to the facts of each particular case, without any assistance from the trial judge. Even if the decedent was negligent in approaching the railroad-crossing, there was evidence that those in charge of the train of the defendant company were also negligent in approaching the crossing, and the jury might well have found from the evidence that the defendant’s negligence exceeded that of the decedent.” Whitcomb v. Payne, 27 Ga. App. 722 (109 S. E. 703); Bryson v. So. Ry. Co., 3 Ga. App. 409 (3) (59 S. E. 1124), and cit.
In the case we are now considering the freight-train, when the injury to the plaintiff occurred, was on a side-track which connected *583the main line of railroad with the plant of Reliance Fertilizer Company. There was nothing whatever to pnt the- plaintiff on notice, or to canse him to suspect, that a moving freight-train would be thereon at that hour of the night. The petition alleges that “the night was intensely dark, foggy, and misty,” that “the defendant had not provided any means of warning petitioner that he was approaching said crossing,” and that he was in the exercise of due care and free from fault, and did not know of the presence of the said freight-train until he was about twenty feet from it, and that his injuries were due entirely to the negligence of the defendant. The opinion of the majority of the court is based upon the idea that the injury of the plaintiff was caused solely by his “negligence or want of ordinary care.” Under the particular facts of this case, if the plaintiff was negligent at all, he was not negligent in the manner in which he approached the crossing. Until he was within a few feet of the train he knew nothing of its presence'or of the negligence of the defendant; and whether, after the negligence of the defendant came into existence and was known to the plaintiff, he could have avoided the injury was a question of fact for the jury. In Western & Atlantic Railroad Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802), the 2d headnote is as follows: “Failure to exercise ordinary care on the part of the person injured, before the negligence complained of is apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.” Bullard v. Southern Railway Co., 116 Ga. 644 (3) (43 S. E. 39). In Williams v. Southern Railway Co., 126 Ga. 7.10 (55 S. E. 948), Justice Atkinson said: “If, after the negligence of the defendant commenced, the deceased became aware thereof, or by the exercise of ordinary care should have become aware thereof, and then and thereafter failed to exercise ordinary and reasonable care and diligence for his own safety, there could be no recovery. The deceased’s want of ordinary care is a question for the jury, concerning which they are exclusive judges, just as they are concerning the negligence of the defendant. It was for the jury to say, under the particular circumstances of this case, at what time the negligence of the defendant began. When did the deceased know of it ? Or when did its existence become apparent so that, under the particular attendant *584conditions, the deceased, by the exercise of ordinary care, should have known of its existence.” Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528 (15) (134 S. E. 126). When can a demurrer to a petition be properly sustained? In Savannah Electric & Power Co. v. Nance, 31 Ga. App. 632 (121 S. E. 690), it was held: “Questions as to diligence and negligence, including contributory negligence and what constitutes the proximate cause of the injury, are questions peculiarly for the jury such as this court will decline to solve on demurrer except where such questions appear palpably clear.” In the instant case such questions do not appear “palpably clear.” “Except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance, ‘the trial judge should not tell the jury what acts would constitute negligence, and what would not, but should instruct them as to the proper measure of diligence, and leave them to determine, in view of all the evidence bearing on the subject of the time, place, circumstances, and happenings, whether there was or was not a want of due cared” Davis v. Whitcomb, 30 Ga. App. 497 (2) (118 S. E. 488), and cit. The facts in the case of Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332 (136 S. E. 533), are quite similar to the facts of the instant case. Citing a number of cases to support the position taken, the headnote of the decision in that case says: “It can not be said, as a matter of law, that the petition failed to show negligence by the defendant, nor that it affirmatively appeared therefrom that the plaintiff, if negligent, was so negligent as to be barred from a recovery, nor that the collision should be attributed to negligence on her part as the proximate cause. ’ The petition set forth a cause of action, and the court did not err in overruling the general demurrer thereto.” In conclusion the writer appropriates the words of Judge Bell in the opinion in that case, and applies them to the instant case, as follows: “From all the facts appearing, we can not say that the railway company was not negligent in at least one or some of the particulars alleged, or that the plaintiff, if negligent, was so negligent as to be barred from a recovery, or that it affirmatively appears that the accident was attributable to negligence on the part of the plaintiff as the proximate cause. It is our opinion that the averments of the petition make a case for a jury, and therefore that the superior court properly overruled the general demurrer.”