ON MOTION TOR REHEARING.
MacIntyre, J.In addition to what has been said in division 4 of the opinion relative to special ground 4, which relates to a request to charge on the duty of the plaintiff to use his sense of sight and hearing, it should be noted that the judge, in one part of his charge, said: “He must prove the case as he alleges it, and he must show the negligence alleged, and not any other negligence. Now I think I have covered this, but maybe I didn’t. Even though you may find that the defendant was negligent, still, if the plaintiff, in the use of ordinary care, by the use of his senses, sight and hearing, could have avoided the collision with the train, he could not recover. Perhaps I was not clear on that. That is a rule of law. The plaintiff must show that he could not have avoided the injury, that he exercised due care and diligence on his part, and that the damage or injuries that he sustained in dollars and cents was the proximate cause, I mean result, of the negligence of the defendant. Proximate cause is that which by a natural and continuous sequence, unbroken by any new cause, produces an event, and without which the event would not have occurred. Negligence, to-be the proximate cause of an injury, must be such as a person of ordinary caution and prudence would have foreseen that some injury would likely occur therefrom, not that the specific injury would result.” This instruction, taken in connection with the other parts of the charge on contributory negligence, plainly and in substance covered the principles of law stated in the request, and a failure to charge in the exact language requested is not reversible error.
•Eelative to special ground 5, the request to charge “that you *791should find for the defendant” if the jury found “that the plaintiff ran his car into the side of the engine or train,” would have been in effect saying that, regardless of any emergencies, the plaintiff would have been guilty of such contributory negligence as would defeat a recovery; whereas, if all the conditions with reference to what the evidence of the plaintiff showed had been stated and viewed in its most favorable light to the plaintiff, it was not in the power of the court to instruct the jury that the plaintiff, in running into the side of the engine or train, would have been guilty of such contributory negligence as would defeat a recovery. Standard Cotton Mills v. Cheatham, 125 Ca. 649 (6) (54 S. E. 650); Bunnell v. Waterbury Hospital, 103 Conn. 520 (131 Atl. 501). It was the jury’s right, in this action for a wrongful injury to a person, to determine the question of contributory negligence, as this is a matter to be inferred from the evidence. 1 Reid’s Branson, Inst. to Juries (3d. ed.), 45 (98). This requested charge was a hypothetical statement by way of instructi.on, and was insufficient because it embraced but a part of the issues and ignored all facts necessary to be found as bases for the verdict. 1 Reid’s Branson Inst. (3d. ed.), 49 (25); Read v. Wiseman, 106 W. Va. 287 (145 S. E. 388).
The other grounds of the motion for rehearing being considered,
Rehearing is demed.
Broyles, C. J., and Guerry, J., concur.