concurs in the view of the writer that a reversal should be entered, since the vital inquiry, upon which the majority predicate their opinion, should have been submitted to the jury, as was asserted in the dissenting opinion in Harris v. N. C. & St. L. Ry., supra, and the authorities therein cited; and in further support of which, in this case, where the injury was inflicted at a public crossing, we cite Code 1896, § 3443, whereby the burden to negative in proof the negligence presumed to have produced the injury is laid upon the common carrier. The testimony of the engineer, the sole eyewitness, in reference to whether he was negligent in the performance of his. duty to avert the injury, after be*331coming aware of Mrs. Nestor’s peril, was purely opinion, and probably expert at most, and did not and- should not bind the jury.
The judgment is affirmed.
Tyson, C. J., and Haralson, Dowdell, Simpson, and Anderson, JJ., concur. Denson and McClellan, JJ., dissent.