The trial court committed reversible error in giving charge 3 at the request of the defendant. The latter part of same was a peremptory instruction that plaintiff was guilty of negligence in driving on the track without first looking for approaching cars, and ignores plaintiff's theory of the evidence, and invades the province of the jury. In the first place, the jury could have inferred that while the plaintiff's car was near enough to the track to be struck by the car, he had not actually driven on or across the track; second, according to one theory of the evidence, the plaintiff was driving down the street parallel with the car track, and the back of the automobile was struck by the approaching car, which the plaintiff had heard, and was endeavoring to clear the danger zone when struck. If the jury believed this version of the evidence, it was not the imperative duty of the plaintiff to keep a lookout to his rear for approaching cars, and he was not, as matter of law, guilty of negligence.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SAYRE, GARDNER, and MILLER, JJ., concur. *Page 303