ALSCHULER, Circuit Judge.
The appeal is from a judgment for damages occasioned by a train of cars striking an automobile at a crossing of a street and railroad in Vincennes, Ind. But one proposition is advanced by appellant, viz., that appellee's contributory negligence bars his right of recovery.
The engine was backing six box cars toward and across Sixth street, whereon appellee was driving his automobile. It was dark, the railroad crossing was wholly without guards, and there were no lights in the near vicinity. There was abundance of evidence that the nearest car of the train was without light or guard, and that no signal or notice of its approach was given; and that appellant, and another in the automobile with him, looked and listened as they approached the crossing, but did not see or hear the approaching train. It seems that both train and automobile were moving slowly, and under the evidence it is quite possible that, even if the train might have been seen from the automobile approaching on the diagonal crossing, it might not have been manifest to those in the automobile that the train was moving.
The evidence falls far short of establishing as a matter of law such contributory negligence of appellee as would bar his recovery.
Upon this record the question whether appellee, by his negligence, contributed to the occurrence, was for the jury; and its conclusion thereon we are not at liberty to disturb.
The judgment is affirmed.