I dissent. At the time defendant’s motion for a nonsuit was submitted, it had *527been made perfectly clear by the plaintiff’s own testimony that he was giving no heed to the passage of trains along the wharf or pier when the accident occurred. He was neither looking nor listening,—was, in fact, taking no precaution whatever to avoid danger from that source, and was, therefore, guilty of contributory negligence if he knew or had reasonable grounds for apprehending injury from a passing train. But, was it clearly shown by plaintiff’s testimony that he had such knowledge or grounds of apprehension ? I cannot say that it was. He was not on the track or pier, but was in a small sail-boat on the bay, which, by the careless and unskillful management of his companion, had been drifted by the wind against the wharf, so that its bow was under and its mast was resting against the side of the pier, in which position it was held by'the force of the wind or current so firmly that all their efforts were insufficient to disengage it. It makes no difference, it seems to me, that he entered the boat from the pier while it was in this situation.
Except in so far as that and previous visits to the pier might tend to prove knowledge on his part of the manner in which the pier and track were constructed, I think that after he was once fairly in the boat his subsequent conduct must be viewed precisely as if he had been sailing on the bay, and by accident or unskillfulness had been carried into the position in which defendant’s train found him. The question then is, whether he knew or had reason to suppose that defendant’s track had been so laid that its cars moving upon the rails would project beyond the edge of the wharf so as to come in contact with the mast of his boat. As to this he testified that he did not know that the track was so laid, and it appears to me he had no reasonable grounds to suppose so.
The wharf in question extends from the shore to the ship-channel, a distance of about twelve hundred feet *528across the bay of San Diego,—a bay navigated by small sailing vessels, which are liable at any time to be drifted against the side of the pier; and certainly no one could presume that a track would be so laid upon it that cars in passing would impinge against the masts of boats lying alongside. In fact, it was shown that the cars first used on the track did not project beyond the edge of the wharf, but that wider cars were subsequently adopted, which projected twelve or fifteen inches, and that the rails were never moved in so as to render the wider cars harmless.
For these reasons I cannot say that the superior court erred in denying the motion for a nonsuit.