dissenting:
I find myself unable to concur in the majority opinion.
The jury was not obliged to take as correct the estimate of the plaintiff’s witness, Hardy, of the distance the railway car was away when the plaintiff stopped his machine to look and listen before going on the crossing. Indeed, it appears from the defendant’s own witness, the motorman, that Hardy was in error in making such estimate.
The reference in the opinion to the inferences the motorman may have drawn from the stopping of the automobile so close to the track, or from the manner in which the plaintiff may have approached the crossing, are inapplicable to the case, as the motorman testified that he did not see the automobile until after it was on the crossing.
I think there was ample evidence to support the verdict of the jury, both upon the finding that the plaintiff exercised reasonable care under all of the circumstances, and that, even if the plaintiff was negligent, the motorman had ample time to have put on the brakes and avoided the accident after the peril of the plaintiff became apparent, if the motorman had discharged the duty of lookout imposed on him by law, so that his negligent failure to discharge that duty was in truth the proximate cause of the accident-.