I agree in the conclusion reached by the district judge that the defendant company was negligent in having failed to close the gate while backing one of its trains across the public street into the railroad station. The open gate was notice to plaintiff that there was no danger in passing through it, and it was an invitation to him to proceed on his way. When plaintiff reached Basin street and found the gate open, he was only required to look out for the right of way traffic coming from the direction of Canal street. It was not incumbent upon him at the same time to look out for the approach, behind the iron fence and towards the open gateway, of the trains of the defendant company. Plaintiff was entitled to rely upon the performance by the defendant company of its plain duty under its franchise from the municipality to keep the gate closed when trains are entering or departing from the depot, and to keep it open when the conditions are otherwise. If the principle announced in the majority opinion be correct, the requirement of the municipality was a mere empty gesture, the erection of the gate was unnecessary, and its *Page 360 further operation is superfluous. It becomes a menace rather than a protection to the public. If the gate was lacking and the street was open, a greater degree of safety would be provided for the public than under the present conditions, because, in that event, in passing through the depot along the street in question, they would necessarily be reminded of the duty to stop, look, and listen before crossing the railroad tracks. I think the plaintiff is entitled to a recovery, and for that reason I respectfully dissent from the opinion and the decree.