This is an appeal’from the circuit court of Carroll county by the ..Southern Railway Company from a judgment of three thousand, three hundred and fifty dollars rendered against it in favor of S. A. Floyd for injuries alleged to have been received by him by reason of the appellant having blocked with its cars the public road crossing at Malmaison.
We will first give the leading facts. Malmaison is a small railroad station on appellant’s railway line. At this point its road runs east and west. The side track or switch lies and runs parallel to the main line, immediately north of it. The public road is crossed by the main line and side track at this point. The appellee lives several miles south of Malmaison. Appellee,’ on arriving in the village, some hours prior -to the unfortunate accident, hitched his horse just north of appellant’s railroad track. Desiring to return to his home, about 8 or 9 o’clock at night, appellee found the public road blocked by freight cars standing upon the track that passed over the public road, and the freight cars extended from this point, both east and west, some fifty or sixty feet. These cars remained in that position the balance of that night’ *530•and a part of the next day. Appellee,. discovering that there was no engine attached to either end of these cars, and the surrounding circumstances seeming to have suggested to him that they would thus remain for some time, dismounted from his horse and walked west (leading his horse) by the side of these cars. When he arrived at the end of these freight cars, he turned south, passing over the side track to the main line, and then turned east, walking on the main line, with the intention of reaching the public road. After reaching a point within fifteen or twenty feet of the public road, he stepped off the main track into a hole, which he says was about two or three feet deep and about six feet wide. In the fall he struck against a cross-tie, and received the injuries complained of in his declaration. The nature and extent of these injuries we will not set forth, as we think the jury was warranted in its finding. Appellee claims that, when he fell into the hole, he did not see it on account of the- extreme darkness of the night. It is alleged that this hole was made, just before this accident, by appellant getting dirt to place upon its track. There is some dispute as to the size and depth of this hole. The night on which this accident happened was cloudy and very dark. It appears from the record that appellee was well acquainted with the premises and railroad tracks at this place.
These are the leading facts. Upon the Trial the court gave the plaintiff This instruction: “The court instructs the jury in this case, if the plaintiff has shown by evidence that the public highway or road crossing at Malmaison, which is alleged to have been obstructed by defendant, leaving cars over said crossing, was ‘ a highway, a public road, that the plaintiff himself was detained by said obstruction for a longer period than five minutes, and that the detention or obstruction caused the injury complained of, then the defendant is liable for all damages sustained as a consequence of the carelessness and *531negligence of their agents or servants in obstructing the said crossing.”
The counsel for appellant insists with much earnestness and skill that'appellant was entitled, under the facts in this case, to a peremptory instruction; and he further contends, if he is mistaken in that, that the above instruction is manifestly erroneous, and, if for no other reason, the case should be reversed. “When the. evidence neither proves nor tends to prove liability on the part of a defendant, or where the facts shown in evidence and all the inferences from those facts make it clear that plaintiff’s own negligence produced or contributed, as the proximate cause, to produce the injury for which recovery in damage is sought, then and in every such case the question is for the court alone. McMurtry v. L. N. O. & T. Ry. Co., 67 Miss. 604, 7 South. 401.”
Beach, in his work on Contributory Negligence (page 454), under the head “Contributory Negligence as a Matter of Law,” elaborates this idea in a most admirable manner: “What amounts to negligence, as we have already seen, is a question of law. It is for the court to say, in a majority of instances, what is, and what is not, negligence as an abstract proposition. When, therefore, - the facts of a given case are undisputed, and the inferences, or conclusion to be drawn from the facts, indisputable, when the standard of duty is fixed and defined, so that a failure to attain it is negligence beyond cavil, then contributory negligence is a matter of law.”
To prevent a recovery in this case, the plaintiff’s negligence must proximately contribute to the injury. If the sole immediate cause of the injury was the defendant’s negligence, the plaintiff can recover, notwithstanding previous negligence of his own. Miss. Central R. R. Co. v. Mason, 51 Miss. 244.
It wás negligence on the part of the appellant in blocking the highway as heretofore described. It is *532clear that the appellee, in attempting to go home, found the road thus blocked. It was a very dark night. He was so situated that the very laws of necessity forced him to act in some way. In the nature of things, he must then and there decide to remain in the road for the night, or return to seek shelter at some neighbor’s house, or attempt to go forward to his home. He chose the latter course, and did attempt to pass around the obstruction. Was this a reasonable decision for him to make, in the light of all the facts before him? Was it such a course that most any reasonable and prudent man would have adopted under similar circumstances? Was his negligence such as to amount to an utter disregard for his own safety, or did he use ordinary care and prudence? If so, he is not guilty of contributory negligence per se.
These were some of the questions necessarily before the jury,, and it was for them to say whether appellee was guilty of such contributory negligence as would bar a recovery, and not for the court. It has been well said: “Where the facts are conceded, but the' inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury, and not the judge, which is to be appealed to.” We are of the opinion that, under the facts as contained in this record, the court was correct in submitting the case to the jury.
The learned counsel for appellant earnestly insists that the obstruction of the highway did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible. If counsel’s position is correct, the instructibn was improperly given, and defendant railroad company should have had a peremptory instruction. We think, - however, from the record in this case, that the injury sustained by plaintiff is directly traceable to the obstruction of the highway by the defendant railroad company. It is manifest that the railroad company blocked the highway, and if this *533negligence had not been committed by it the appellee would not have attempted to go this circuitous route, •and this injury would not have befallen him. We think the blocking of the highway was the proximate cause of the injury.
Counsel for appellant further insists that the instruction is fatally defective, because the jury are told, “if the plaintiff has shown by the evidence,” etc.- He contends that it should have read, “If -the jury believe from the evidence,” etc. We think this criticism too technical. The criticism does not go to the substance of the instrution, but rather to its form. Taking the instruction as applied to the facts, we think is substantially correct. But, should we- be in error, the jury could not have been misled by it, when considered and •construed in the light of instruction No. 3 given for appellant, and all other instructions in the case.
Affirmed.
Per Curiam.The above opinion is adopted as the opinion of the court, and, for the reasons there indicated by the Commissioner, the case is .affirmed.