(concurring in the order of reversal).
The majority opinion recites the faets accurately and fairly; it states the nebulous rule of proximate cause aptly and succinctly. But I cannot agree with the holding that the negligence of the fireman was, as a matter of law, not the proximate cause of the injury; nor with the instruction of Judge Johnson that if the signal was received in time to stop; it was the proximate cause. I think the question was for the jury.
The fireman admits he was looking out of tho cab window, saw the automobile coming toward tho crossing, and saw the brakeman signal; the jury found, against what seems to me the greater weight of the evidence and tho probabilities, that the signal was for the locomotive to stop. The fireman ignored the signal; in so doing, he violated the cardinal rule of railroad operations, and was clearly guilty of negligence. The majority opinion holds, as a matter of law, that tho fireman could not reasonably foresee that a collision would result from his neglect. If he should have foreseen such result, the fact that the driver of the ear was also negligent, is no excuse.
I think a jury might very reasonably conclude that the fireman should readily have foreseen that a collision with the approaching ear would result from his neglect. The majority hold that a jury of reasonable men could not come to that conclusion. With that holding, I am not in accord. We all know that drivers are negligent in approaching railroad crossings, for the reports are full of cases where drivers attempt to cross when trains are in full view. Tho automobile almost stopped when it approached the crossing; but that fact does not inevitably lead to the conclusion that all danger of collision had passed, for drivers sometimes become confused when coming to a crossing with a train approaching. Nor does that fact justify a disregard of a command to stop.
Nor am I in accord with Judge Johnson’s charge that if the fireman saw the signal in time to stop, his failure to heed the signal “would become the proximate cause of tho injury.” T think the question of whether the fireman might reasonably have foreseen that a collision with this ear would result if he did not stop, should have been submitted to the jury in substantially the language of the instructions requested by appellant, to wit, that there could be no recovery unless the jury found “that the fireman, in the exercise of ordinary care, should have anticipated and expected that if the engine entered upon the intersection the automobile would continue on its course and collide with the engine or its tender.”'
I see no reason why either Judge Johnson or the majority opinion should take this ordinary fact question from the jury. What the mythical “reasonable man” should or should not do, under admitted faets, is peculiarly a jury question; the experience of jurors enables them to appraise, quite as accurately as judges, the conduct of ordinary men. Such questions should go to the jury unless hut one conclusion can he drawn from, the faets. I have grave doubts as to whether the fireman was signalled to stop; if ho was, it is a reasonable assumption 1hat he would have grasped that the signal was given to prevent what did happen, a collision with an approaching car, which all railroad men have come to anticipate and dread. For failure to submit that question to the jury, and for that reason alone, I think the cause should he reversed.