I dissent.I think there was evidence in the case on the question of negligence of defendant, and con*715tributory negligence of plaintiff, which should have been submitted to the jury. This was done by the court below, and there was no error in so doing. The opinion of the majority in this case is in conflict with the judgments of this court in Shafter v. Evans, 53 Cal. 33, Chidester v. Consolidated Ditch Co., 59 Cal. 197, McKeever v. Market St. R. Co., 59 Cal. 300, and Fernandes v. Sacramento City Ry. Co., 52 Cal. 45. . See, also, New England Glass Co. v. Lovell, 7 Cush. (Mass.) 321, and Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. These cases hold that on questions of negligence (and in this I include contributory negligence, which denotes negligence on the part of the plaintiff) the jury are not only to find the facts, but such inferences as follow from them. The question only becomes one of law when- the facts proved are such that men of ordinary judgment and intelligence must all agree that they show negligence. The facts in this ease are not of that character, for they tend to show that the engineer in charge of the train could, if he had discharged his duty, have seen the plaintiff lying on the track. It makes no difference that the engineer testified that he was looking, and did not see plaintiff. His credibility was a question for the jury. The judgment in this case is a new departure, which must result in great embarrassment to this court whenever it is invoked as authority.