dissenting:
The error, as I see it, in the majority opinion lies partly in the fact that it deals with the case as if defendant were operating a steam railroad through a rural community. The defendant operates a trolley car on the public highway, with the consent of the proper authorities.*
*631The scene of the accident was at a street intersection in “a modem subdivision” just south of the corporate limits of the city of Richmond. Under these circumstances, I do not think it was negligence, as a matter of law, for the driver of the motor vehicle to attempt to cross the tracks of the street car company, when he knew that a street car, some 670 feet away, was approaching the crossing. This is true even though the driver saw four or five other motor vehicles traveling on the opposite side of the track from him. Both eye witnesses to the impact stated that after the truck was on the crossing, the vehicles in the northbound lane became “bunched”—that is, the operator of one of these vehicles attempted to pass the other, thereby taking up practically all of the traveled portion of the northbound lane, and effectually blocking Ford, for a few seconds, on the crossing.
Nor do I think that Ford was guilty of negligence as a matter of law in failing to get out of the truck before the impact. The interval, between the time that Ford saw that he was blocked and the impact, was one of just a few seconds. It was impossible for him to keep his eyes on the motor vehicle traffic in front of him, and approaching from his right, and at the same time keep his eyes on the street car approaching from his left. Before we con*632demn a person of negligence as a matter of law, we should take into consideration the fact that a person’s mind does not act automatically, and that a street car in close proximity, approaching with undiminished speed at forty-five miles per hour, is not a thing which aids a normal person to choose the best course to pursue. After the danger is over, and we are reviewing the evidence in the quiet and calm of our studies, it is easy to see wherein a person might have chosen a wiser course. It is by no means certain that even if Ford had stepped out of his truck he would have been out of danger, because, as the street car struck the rear of the truck, the left front of the truck necessarily swung west toward the car, and Ford might have been caught in between the two.
I am not impressed by the statement in the majority opinion that because defendant had adopted a certain schedule for the operation of its cars between Richmond and Petersburg, it thereby became necessary for the operators of the street car to maintain a fast rate of speed. I am neither approving nor disapproving the schedule. If it did necessitate the operation of a street car at an unusually fast rate of speed, it thereby increased the duty of the operators to keep a more vigilant lookout for the traveling public, who had equal rights with defendant at street intersections. It must be remembered that Ford was operating his truck on a schedule, too. The bottles of milk on his truck were destined for delivery to residents within the area served and it was just as important to him and them to get the milk on time as it was for defendant and its passengers to reach Petersburg and way stations on schedule time.
Both plaintiff and defendant were engaged in legitimate enterprises. Each owed to the other the duty of so operating their vehicles as not to injure the life or property of the other. For the one to operate his car at forty-five miles per hour to within thirty feet of the other, who was obviously blocked on the crossing, without diminishing speed, was gross negligence; and, under the circum*633stances, whether Ford was guilty of contributory negligence is, to my mind, a question for the jury. If he was guilty of negligence, the doctrine of last clear chance applies.
This is not the first time that reasonable men have viewed the same evidence differently. This court, more than fifty years ago, in Carrington v. Ficklin’s Ex’rs, 32 Gratt. (73 Va.) 670, at page 676, dealt with this problem as follows:
“It is a mistake to say, as is sometimes said, that when the facts are undisputed the question of negligence is necessarily one of law. This is generally true only of that class of cases where a party has failed in the performance of a clear legal duty. When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of these conclusions has been drawn by the jury. The inferences to be drawn from the evidence must either be certain and incontrovertible, or they cannot be decided by the court. Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ. Idem. [Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99] p. 123. To the same effect is Sioux City & P. R. Co. v. Stout, 17 Wall. (84 U. S.) 657 [21 L. Ed. 745].”
This statement of the law has been approved by this court in numerous cases and recently in Virginian Ry. Co. v. Hillsman, 162 Va. 359, 173 S. E. 503, and should be applied in this case.
“This Agreement, Made this 25th day of September, 1929, by and between the Commonwealth of Virginia, acting by and through the State Highway Commissioner, party of the first part, and the Virginia Electric and Power Company, a corporation duly organized and doing business under the laws of the State of Virginia, party of the second part.
“Whereas, the Board of Supervisors of Chesterfield County, Virginia, by resolution, adopted March 27, 1899, granted to the Richmond and Petersburg Electric Railway Company! a franchise to operate an electric railway on and! along the Richmond and Petersburg Turnpike *631in Chesterfield County, Virginia, this being the main public highway connecting the Cities of Richmond and Petersburg, Virginia, which said franchise was extended and amended by resolution of said Board adopted February 14, 1901; and,
“Whereas, pursuant to the said franchises so granted to the said Richmond and Petersburg Electric Railway Company, the said Company occupied the said Turnpike and constructed thereon an electric railway extending along the eastern portion of the said Turnpike from the southern corporate limits of the City of Richmond, Virginia, to a point in Chesterfield County, Virginia, known as Bellwood, and at the said point the said line of the electric railway crossed the said Turnpike in a westerly direction and diverged from the said Turnpike over a private right-of-way through portions of Chesterfield County, and then returned to the western side of the said Turnpike at a point just south of Swift Creek, Chesterfield1 County, and thence extended along the said Turnpike in a southerly direction on the western side thereof to the corporate limits of the City of Petersburg, Virginia; * * The accident occurred between the corporate limits of South Richmond and Bellwood.