(dissenting). I dissent from the conclusions arrived at by the court in this case. As I understand it, the uncontradicted evidence showed that there was for a distance of seventy feet before reaching the tracks a wholly unobstructed view up and down, so that anyone approaching them could, if he had looked, have seen an engine thereon in ample time to have stopped in a place of perfect safety until it had passed. Notwithstanding the fact that the gates were open a person intending to cross the tracks, in broad daylight, was not relieved from the necessity of using his eyes to make sure that he could cross in safety. Had he looked he must have seen this engine coming rapidly towards the crossing, and if he then undertook to cross ahead of it, his failure to do so was at his own risk. If he did not see the engine, it must have been because he did not choose to look, and his omission to do so was also a risk, the consequences of which he took upon himself.
I think the plaintiff should have been nonsuited, and that, consequently, this judgment should be reversed.
All concur with Danforth, J., except Peokham, J., dissenting; Earl and Gray, JJ., concurring in result
Judgment affirmed.