I concur in a reversal of the judgment appealed from, upon the ground that the evidence by its controlling weight, if not as matter of law, not only fails to establish that the intestate was free from contributory negligence, but upon the other hand indicates that he was guilty of it. '
The testimony of plaintiff’s witness Coleman is absolutely essential to establish plaintiff’s right to recover. He is the only witness-relied upon to prove that the intestate did observe proper care and caution. He testifies that he had stopped upon Mill street, south of the railroad crossing, and that intestate- in approaching the. tracks stopped upon the same side thereof, near the flagman’s shanty, which was about six feet southerly from the southerly track; that at this time the east-bound train was passing over Mill *580street, and that as, after standing there, the witness started on again, the intestate also started to cross the railroad tracks. The gauge of each track was four feet eight inches and the distance between tracks was seven feet three inches, so that the distance of intestate’s starting point by the shanty was nearly twenty feet from the west-bound track upon which he is claimed to have been struck. The crossing of Mill street, by the east and west-bound trains respectively, is naturally a matter of great importance in this case, and Coleman is the witness' upon- whose testimony plaintiff must rest. He varies somewhat in different portions of his testimony as to the - instant when the west-bound train came upon the crossing with relation to the instant when the east-bound train left it. ' But the substance of his evidence, when lie is called upon to weigh his words most carefully, is that the west-bound train- certainly came upon the crossing by the time the east-bound train was clear of it, and that this occurred about as he was starting from his standing and waiting position. Remembering that intestate started from his position by the flag shanty about twenty feet distant just as the witness started, it seems to me incredible that the intestate could have got upon the track in front of the west-bound train after the necessary passage of the east-bound train if he had exercised the slightest observation. Of course, the witnesses for the defendant give- evidence indicating that he was not killed in any such way as is claimed by plaintiff while attempting to make the crossing. But I disregard their evidence as presenting an issue for the jury and base my conclusions upon that, of the plaintiff’s own witness. The westbound train is said by some of plain tifias witnesses to have been going at the rate of fifty to sixty -miles an hour and Coleman’s attention was attracted by the roar of its approach. His detection of its approach was subject to any difficulty caused by the noise of the east-bound train as much as intestate’s, and the evidence makes it apparent that if the latter had exercised a slight measure of care be could not have got upon the track in front of the west-bound train,, close as it must have been after the passage of the east-bound train over the crossing, without knowing of its approach.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and of fact.