(dissenting). — With all due deference for the result deduced by my brethren from the facts of this case, and to the argument in the course of which they reach it, I am constrained to say that in my judgment the logical result of the argument as well as the facts should be an affirmance of the judgment of the superior court sustaining the motion for a non-suit rather than a reversal. It is clear from the evidence that the appellant was grossly in fault. He drove his team at a pace not exceeding two *46miles an hour along a road parallel to and not more than thirty feet from the railroad track, with his face away from the track, and could not at any time when he was within from thirty to one hundred feet of the crossing have looked to the southward whence the train which injured him came. It was said that the train was going very fast, perhaps at the rate of thirty miles an hour. If so, while appellant was traveling one hundred and seventy-six feet the train would move a half a mile, and when he was within ninety feet of the crossing the train was within a quarter of a mile from him. Every witness admits that ninety feet from the crossing placed appellant on the top of the little hill along side of and within thirty feet from the track, and that the train could easily have been seen from a quarter to a half a mile to the south of that point. Piad he turned his head in that direction at any time he must have seen it even if he could not hear it, which is almost an impossible supposition, as a train of eighteen loaded freight cars traveling at thirty miles an hour must necessarily make considerable noise. So far as obstructions are concerned, without any testimony at all the facts are made perfectly plain by two excellent photographs which the appellant himself put in evidence. The testimony of the photographer who took them and of the engineer who measured the ground shows that they were taken from the one point where there was any obstruction of the view to the south, and these photographs show that the only obstructions were two telegraph poles and a small signboard nailed on one of them at a distance of not exceeding thirty feet from the point where the photograph was taken. The photograph shows the road and all the ascent there is on it, the railroad track southward, the place where the accident occurred and all the obstructions, and it is to my mind too clear to need any argument that no man in his senses, who chose to use either *47his eyes or ears, need at that point be run down by a train approaching from the south, no matter how fast it was running, unless he had an unmanageable team, which is confessedly not the case here.
Further than that, it is apparent that if appellant, when within the line of obstructions caused by the poles, and as near as ten or fifteen feet from the railroad track, had then looked to the southward, when the train was within three hundred feet of him, he might have easily turned his entirely manageable team to the right and have thus escaped. It is perfectly clear that he sat still with his face to the north and the east all the time and entirely omitted to take any care for his own safety until the train was actually upon him. It is against the policy which assumes to have some regard for the public who travel, and are employed upon railroad trains, as well as for those who cross their tracks, that every man should use reasonable diligence in protecting himself from injury as well as avoiding possible loss of life and property by a collision with him, and the superior court is to be commended in having stopped the case when it did, thus avoiding what, even in the event of another trial, must be useless waste of time and money by both parties. That certain witnesses made statements, which, taken entirely alone, constituted a scintilla of evidence for the plaintiff, should not outweigh the burden of the case as a whole.
Hoyt, J., concurs.