The majority correctly say that there can be no recovery if the negligence of the deceased was equal to or greater than that of the employees *Page 425 of the railroad company. Both were negligent, but, in my opinion, the respective degrees of negligence was a question for the jury, and I, therefore, dissent from the judgment dismissing the cause of action. The jury might well have found that the negligence of the deceased was greater than that of the operatives of the train; but that finding was not made.
However, I think it certain and undisputed that deceased was negligent, but, in my opinion, the jury did not take that fact into account. The wigwag was working, but the warning which it gave was disregarded. Certainly this was negligence, and the statute (1213, Pope's Digest) provides that "where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence."
If this statute is applied and given effect, the judgment for $20,000 cannot be sustained, and should be materially reduced. In my opinion, under the undisputed evidence, the judgment should be materially reduced, although the cause should not be dismissed.