The opinion
On Rehearing.
We have given appellee’s motion for rehearing careful consideration, and have examined all authorities cited. We believe our construction of the refused special charge is sustained by an unbroken line of decisions from tbe Edwards Case, discussed in our original opinion, to the granting of writ of error in tbe Harrington Case, also discussed in our original opinion.
In the recent case of Southern Traction Co. v. Kirksey, 222 S. W. 702 , Judge Jenkins, discussing a charge similar to the one refused in this ease, said:
“The cases above cited announce the doctrine that tbe failure of one about to enter upon a railroad track to look and listen is negligence as a matter of law. It may now be regarded as the settled law of this state that such failure will not of itself amount to negligence as a matter of law, but if the jury should find that such failure was negligence on the part of the person injured, and that such negligence was a proximate cause of the injury,' there will be no right of recovery, and the jury should be so instructed. It is tme that requested charge did not submit the issue of proximate cause, but,, under the widispnted evidence, if the deceased was guAltg of negligence in driving his automobile against appellant’s car, there could be no question but that stuih negligence was a proximate cause of his death.” (Italics ours.)
It seems to us that this authority is directly in point, and sustains us in our conclusions.
The motion for rehearing is in all things overruled.