dissenting. As alleged in the petition, the plaintiff was injured at a public railroad crossing where he had a right to be and assume that the defendant’s train would be operated in accordance with the statutory requirements as to speed and the sounding of an alarm upon its approach to the crossing. His right *347to be on the crossing was equal to that of the railroad company. As was stated by Judge Bleckley in Central Railroad &c. Co. v. Smith, 78 Ga. 694, 700 (3 S. E. 397), the plaintiff, being on a crossing where he had a right to be, was entitled to assume “that the whole world would be diligent in respect to him and his safety.”
In Bryson v. Southern Railway Co., 3 Ga. App. 407 (59 S. E. 1124), where the grant of a nonsuit was reversed, it appeared from the evidence that the plaintiff, after crossing behind a train which had passed, was injured by another train approaching on a parallel track, which he did not hear or see, although he could have seen it had he looked, it was held, in an opinion written by Judge Powell, that “it is not per se negligent for one not aware of the approach of the train to attempt to cross the track without stopping, looking, or listening.” It was further stated in the opinion that the plaintiff “ crossed the main line just behind the first train and just ahead of the second. His attention was directed toward this second train, and he stepped off the main-line track and on to a parallel side-track, six or eight feet further west, without looking up the side-track to the north. A train happened to be coming south on the side-track at a rapid rate of speed. This south-bound train struck him. He did not hear it blow the whistle or ring the bell. He did not see it till it struck him, but admitted that if he had turned his head north as he was about to step upon the sidetrack, he could have seen it. His excuse for not hearing the approach of the south-bound' train was the noise the two other trains were making; and his excuse for not looking up the side-track was that he was watching the approach of the north-bound train on the main track. . . The rule that it is negligent per se for one who is about to cross a railway track to fail to stop, look, and listen is not recognized in this State. Whether, under all the circumstances, the plaintiff was guilty of such conduct as to defeat or diminish his recovery is a question for the jury. . . This is not a case where the plaintiff, seeing and knowing the danger, in manifest imprudence attempted to cross ahead of the train, as in the cases of” (then follow citations).
In Reed v. Southern Railway Co., 37 Ga. App. 550 (3) (140 S. E. 921), in an opinion written by my colleague Judge Jenkins, after quoting with approval the holding cited above from Bryson v. Southern Railway Co., it was stated that “such an attempt to *348cross the track by one not aware of the approach of a train can not, as a matter of law, be said to constitute such contributory negligence as would bar a recovery.”
The following cases sustain the proposition that a person going upon a railroad-track unaware of the approach of a train is not thereby as a matter of law guilty of negligenee barring a recovery: Richmond &c. Railroad v. Howard, 79 Ga. 44 (3 S. E. 426); R. & D. R. Co. v. Johnston, 89 Ga. 560 (15 S. E. 908) ; Metropolitan St. R. Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49); Western & Atlantic Railroad Co. v. Ferguson, 113 Ga. 708 (supra); Bullard v. Southern Railway Co., 116 Ga. 644 (43 S. E. 39); Macon Ry. &c. Co. v. Barnes, 121 Ga. 443 (2) (49 S. E. 282); A. & W. P. R. Co. v. Lovelace, 121 Ga. 487 (2) (49 S. E. 607); Wright v. W. & A. R. Co., 139 Ga. 343 (2) (77 S. E. 161) ; Howard v. Savannah Electric Co., 140 Ga. 482 (79 S. E. 112); Brown v. Savannah Electric Co., 46 Ga. App. 393 (167 S. E. 773). In Richmond &c. Railroad v. Howard, supra, the following request to charge was held to be error as excluding from the jury the determination as to whether the negligence of the plaintiff’s husband in going upon the railroad track in front of an approaching train without looking barred a recovery: If you believe from the evidence that the dead man stepped on the track a few feet in front of the engine or tender, and that if he had looked before stepping on, he could have seen the engine in time not to step on the track, and that in thus stepping on the track he was not in the exercise of ordinary care, then the plaintiff can not recover, and it would be your duty to find for the defendant.’” Judge Bleckley, referring to' this request, states that it “stakes the whole case upon a step; and while it refers to the jury the question as to whether the taking of that step was a deviation from ordinary care, it does not refer to the jury the question as to whether the observance of ordinary care would have enabled the stepper to avoid the consequences of the defendant’s negligence. This step may have been chargeable to the deceased to reduce the damages as an act of contributory negligence; but the request did not limit it in any such manner; it extends it over the whole case and makes it the basis, or seeks to make it the basis, of defeating all recovery. Failure of the injured party in the use of ordinary care, by untimely stepping upon a railroad track at a public crossing, is no complete bar to the recovery of damages, unless, *349by tbe use of ordinary care, the consequences due to the negligence of the other party could have been avoided, . . and whether they could or could not is a question for the jury.” See Thomas v. Gainesville &c. R. Co., 124 Ga. 748 (52 S. E. 801); Williams v. Southern Railway, 126 Ga. 710 (55 S. E. 948); Collum v. Georgia Railway &c. Co., 140 Ga. 573 (3) (79 S. E. 475); Davis v. Whitcomb, 30 Ga. App. 497 (118 S. E. 488); Clements v. Georgia Railway Co., 41 Ga. App. 310 (152 S. E. 849).
It does not appear from the petition that the plaintiff failed to use his senses in going over the crossing. While it might be inferred that the plaintiff failed to look, it is nowhere alleged, and it can not be inferred, that he failed to listen. It is not incumbent on the plaintiff to allege care and lack of negligence on his part. Georgia Railroad v. Stanley, 38 Ga. App. 773, 776 (145 S. E. 530), and cit. It therefore can not be said as a matter of law that the plaintiff, in proceeding over the crossing and going upon the railroad track in front of the approaching train without looking or listening for the approach of the train, or in not seeing or hearing the approaching train, was guilty of negligence barring a recovery. As the petition alleges a violation of the crossing law by the defendant, and other acts of negligence, it is at least a question of fact whether, under an application of the rule of comparative negligence, any negligence of the plaintiff was such as would reduce the amount of recoverable damages.
There is a clear distinction between a state of facts which demands the conclusion as a matter of law that a person is guilty of negligence barring a recovery, and a state of facts which carries mental conviction as a matter of fact that a person is guilty of such negligence. Facts which to one mind might be conclusive as to negligence and proximate cause might not carry such conviction to another mind. Where certain facts reasonably authorize conflicting inferences, it does not follow as a matter of law that these facts constitute negligence proximately causing the injury merely because these same facts carry conviction as a matter of fact that they constitute negligence proximately causing the injury. , Where the facts authorize conflicting inferences as to negligence and proximate cause, although conclusive of such as' a matter of fact to one mind, the facts do not demand such inference as a matter of law. The inferences to be drawn therefrom are inferences of *350fact only, and not inferences as a matter of law. As a juror I possibly would conclude that the plaintiff was negligent and that his negligence barred a recovery; but believing as I do that the facts reasonably authorize the inference that the conduct of the plaintiff, even if negligent, was not the sole proximate cause of the injury, I can not hold as a matter of law that the plaintiff’s conduct was negligence barring a recovery. I am therefore of the opinion that the petition set out a cause of action, and that the court erred in dismissing the action on general demurrer.