dissenting. I am of the opinion that the charge excepted to in the third ground of the amendment to the motion for new trial was error upon the ground that it in effect instructed the jury that if the plaintiff was negligent in going upon the railroad-track, or was negligent in not discovering the approach of the train before going upon the track, he could not recover, notwithstanding his negligence in going upon the track and in failing to discover the approach of the train may not have been the proximate cause of his injury. The charge.was in the following language: “If you find also from the evidence that the plaintiff did not exercise ordinary care to discover and avoid the situation that confronted him, he would not be entitled to recover, and you would find for the defendant.” The effect of the plaintiff’s exception to this charge was that it erroneously instructed the jury that if the plaintiff was negligent, as stated in the charge, he could not recover, notwithstanding the defendant may have been negligent. This necessarily means that the plaintiff could not recover if he was negligent, notwithstanding his negligence may not have been the proximate cause of the injury. The charge excepted to clearly eliminated, as essential to the bar of plaintiff’s right to recover as the result of his own negligence, the fact that such negligence must be the proximate cause of the plaintiff’s injuiy. The plaintiff could have been negligent in going upon the track and creating the dangerous situation that arose after he went upon the track, and yet be entitled to recover if the negligence.of the defendant was the proximate cause of plaintiff’s injury. Plaintiff’s negligence in going upon the track was not necessarily the proximate cause of his injury.
*811It appears from the evidence that after the plaintiff had driven his car upon the railroad-track, and after the motor had stalled and he had attempted to start the car, he had time after observing the approach of the train to get ont of the car and to' undertake to push it off the track. The engineer had considerable time within which to observe the plaintiff's situation upon the railroad-track. It is therefore inferable from the evidence that the engineer could, in the exercise of ordinary care in the operation of the train, have avoided running into the automobile of the plaintiff, notwithstanding the plaintiff may have been negligent in going upon the railroad-track and creating “the situation that confronted him." This being the case, it can not be said that the plaintiff's negligence as a matter of law barred a recovery. The effect of the charge, as has been stated, was an instruction to the jury that if the plaintiff was negligent his negligence barred a recovery. While the able trial judge did not intend to so instruct the jury, yet the import of his language was to that, effect, and it must have been so understood by the jury. The charge of the court which instructed the jury as a matter of law that such negligence would bar a recovery was an erroneous statement of the law, was prejudicial to the plaintiff, and demands the grant of a new trial. I dissent from the conclusion expressed in the majority opinion that this charge was not error for any reason assigned. I concur in all other rulings. I am of the opinion that the court erred in not granting the plaintiff a new trial, and therefore I dissent from the judgment of affirmance.