I agree with my brethren that the judgment in favor of the Lehigh Valley Railroad Company should be *450reversed, and that a new trial should be had, but not for the reasons stated by my Brother Crosby.
The highway in question runs in a northerly and southerly direction, and crosses the tracks at practically right angles. Decedents were traveling southerly. There are three sets of tracks, the most northerly being a switch or siding, the middle one, on which the fatal train was approaching, being used for west-bound trains, and the most southerly of the three for trains going east.
The physical surroundings at this crossing are such that the view to the east of a traveler going south is more or less obstructed until he reaches a point thirty feet north of the first rail of the west-bound track. From that point on he has a clear and unobstructed view of all three tracks for upwards of one thousand feet. If that was the condition which existed at the time of this accident, and concededly it was unless a temporary obstruction of some kind was present for the moment, I think that decedents were bound to look to the east, at a point where looking would have done some good, to ascertain if they could safely proceed, and that, if they failed so to do, they were guilty of contributory negligence as a matter of law, unless there was some emergency present which diverted their attention, and which would justify a jury in saying that, under the circumstances, they were not unmindful of their duty to safeguard themselves from danger from the east. If decedents saw this approaching train, and contested with it the right to the crossing, .1 take it there could be no question that they were negligent as a matter of law.
While it has apparently been taken for granted that at the time these men were crossing the tracks there was no temporary obstruction present which in any manner interfered with the normal view which one would have to the east, and that nothing out of the ordinary happened which would justify decedents in relaxing the duty which rested on them to avoid danger from their left, there is no proof on either subject. As the burden rests on the defendants to show contributory negligence, we cannot substitute conjecture or assumption for evidence. Defendants must prove a situation which negatives any excuse for decedents driving on the track in front of this oncoming train.
The photographs show that if freight cars stood on the siding near this crossing, they would, of necessity, interfere with decedents’ view as they approached the tracks, and instead of having an unobstructed view to the east of one thousand feet when they were thirty feet from the west-bound track, it is easy to visualize a situation where the front of their truck would be practically on the west-bound track before they could have seen the approaching *451train. The burden of showing that the siding was empty at the time of the accident rests on the defendants.
Even if nothing was present to interfere with the customary view of a traveler on the highway, it is not impossible to conceive of an emergency, for which decedents were in no way responsible, which would cause them to relax their thought and attention on any impending danger from their left long enough to make their negligence a question for the jury rather than for the court. For instance, if there were automobiles approaching from the opposite direction at a rapid rate of speed and on the wrong side of the highway, or if a train suddenly appeared from the opposite direction and these things required decedents’ attention, a condition might be present which would excuse them from doing that which, under-normal circumstances, would be required of them. That such an emergency did not exist at the time has been assumed, but not proven.
I think that the defendants, before they are entitled to a nonsuit upon the theory of contributory negligence, must negative by proof any situation which would make decedents’ negligence a question for the jury, and that we cannot take for granted the fact that there was no temporary condition present at the time which would absolve decedents from exercising the care and caution which normally would have been required of them. It is for this reason that I think that the railroad company Was not entitled to a nonsuit.
As to the defendant Cullen, I fail to find any evidence which indicates that he was guilty of any negligence which was the proximate cause of this unfortunate accident, and upon that ground I vote to affirm the judgment as to him.
In each case: Judgment and order reversed on the law as to the defendant Lehigh Valley Railroad Company, and a new trial granted as to that defendant, with costs to the appellant to abide the event. Judgment and order affirmed as to the defendant Cullen, without costs of this appeal to any party.