(dissenting).
This is an appeal by H. D. Pollard, receiver of the Central of Georgia Railway, from a judgment against him, entered upon a verdict of a jury awarding damages for personal injuries received by appellee.
Under the facts as established by the verdict, appellee was injured when an automobile, in which she was riding with her husband, collided with a locomotive of appellant at a public crossing in the city of Birmingham, Ala. Her husband was driving, and she had nothing to do with the operation of the car. At the time of the injury they were proceeding toward Cull-man, on Twenty-Sixth street, which intersects the railway tracks of appellant at Twenty-Third avenue. The automobile was moving at a speed of between 20 and 25 miles an hour when, without ringing a bell or blowing a whistle, the engine was backed out into the middle of Twenty-Sixth street. Evidently, the jury further found that no flagman was preceding the locomotive at a reasonable distance, as required by an ordinance of the city of Birmingham. This ordinance, section 5979 of the Code of Laws with reference to traffic, provides as follows: “It shall be unlawful for any conductor, engineer or other person in charge or control of any steam railroad train or locomotive to permit such train or locomotive to cross any railroad or street car track or any boulevard established by law at points or places thereon where no flagman or watchman is stationed unless such locomotive or train shall have first come to a complete stop within 100 feet of such track or boulevard and unless some member of the crew of such train or locomotive shall precede said train or locomotive across, such track or boulevard at a reasonable distance ahead of said locomotive or train and give the danger signals prescribed by this title.”
Section 5930 of the same Code declares and designates Twenty-Sixth street as one of the boulevards. A violation of the aforesaid municipal ordinance is negligence per se. Watts v. Montgomery Traction Company, 175 Ala. 102, 57 So. 471; Cooper v. Agee, 222 Ala. 334, 132 So. 173, 175; Hover & Co. v. Denver Ry. Co. (C.C.A.) 17 F.2d 881; Steel Car Forge Co. v. Chec (C.C.A.) 184 F. 868; Texarkana Ry. Co. v. Parsons (C.C.A.) 74 F. 408.
It cannot be said from the evidence that the husband’s negligence was the sole cause of the injury. On the contrary, the jury found as a fact, upon substantial evidence, that the appellant was guilty of negligence which directly and proximately contributed to the injury. Conceding that the husband was also guilty of negligence which concurred with that of the engineer in producing the injury, the wife was a guest in the car, and his negligence may not be imputed to her. Miller v. Union Pacific Ry. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285.
I think this case was properly submitted to the jury, and that the judgment of the District Court should be affirmed.