(dissenting). — It is true that upon the re-trial of this case the plaintiff himself said he looked for a train and did not see any, Avhen he Avas some sixty feet away from the track; but it is also true that, both from his oavii evidence and from testimony which Avas uncontradicted and stands unchallenged upon argument of the case, it clearly appeared, that lnaving nothing Avhatever else to do or think of, if he had turned his head to the southward for *282one instant after he got within twenty feet of the track he could have seen the train during all the time after it passed a point over four hundred feet from him. Yet during all this time he kept his face to the north, where he could plainly see that no danger threatened, and let his horses drag along at a pace, as he says, not exceeding a mile an hour. If this conduct did not contribute to his injury and directly cause it, I am unable to imagine a case where the rules of contributory negligence can apply.
The verdict of the jury was not only against the clear preponderance of the evidence, but it ignored both the evidence and the chai’ge of the court, and ought not to be sustained.
Hoyt, J., concurs.