Adams v. Missouri Pacific Railway Co.

On Rehearing.

Barclay, J.

Upon further consideration of this case on the motion for rehearing it seems to me that the question whether or not the injury, which plaintiff sustained, was referable to the wrongful act of defendant, complained of, as a proximate cause, was a proper one to submit to the jury. The facts do not appear to me sufficiently free of doubt on that point to justify the decision of it as a question of law. That is the feature *571of the case that has given me great difficulty in reaching a conclusion.

As to the question of plaintiff’s alleged contributory negligence, it seems to me that it was fairly a question of fact in the circumstances here shown. The opinion of Brother Bbace fully states the essential facts and they need not be repeated now.

This brief statement of my conclusions will probably suffice in the premises, since the cause must be retried, all my brethren agreeing that the judgment should be reversed, though not entirely united on the reasons therefor. A majority of the court is now of opinion that, upon such reversal, the cause should be remanded for further proceedi ngs, and that the motion for rehearing be overruled;

Ray, C. J., and Shee wood, J., dissenting; the other judges concur.