dissenting:
The plaintiff discovering the approaching train stepped back to a place he thought safe. It was a place with a narrow margin from danger, but, as the evidence indicates, it was in fact safe. The learned judge below so treats it, as he says it “ probably, from subsequent events, was a place of safety, because the locomotive and some' few cars passed him and he was perfectly safe.” While in that position the gateman, having a different view, ran towards him with-a warning to “ Get back,” and finding his warning disregarded, seized hold of the plaintiff, who in- the tussle, was thrown and had his leg cut off by the train. The act of the gateman was in clear excess of his authority. His right *471terminated witb the warning which lie saw was intentionally disregarded. Plaintiff chose to stand on his own judgment. lie had a right to do so. He was not a passenger who had committed himself to train or boat and was bound to obey the officers in charge, but was a citizen in the exercise of his right of travel on a public street. Whether his act was wise or foolish, it was his right, and he would have taken upon himself the risk of the consequences.
The act of the gateman was a trespass, and as it was in the course of his employment the defendant was liable for it. Even under the most favorable view it was for the jury to say whether under all the circumstances his act was not negligence.
I would reverse the judgment and send the case to a jury.
Sterbett, C. J., joins in this dissent.