(Dissenting.) — I concurred in the original opinion handed down in this case at the last term, and this too upon full discussion in consultation of the bearing which should be- accorded the attitude of defendant’s watchman on the question of plaintiff’s negligence. A further consideration of that matter, however, on the application for rehearing, constrains me now to dissent from the conclusions then and now reached by the court. My dissent proceeds in line with the criticism visited upon the case of Greenwood v. Phila., W. & B. R. R. Co., in the opinion of the Chief Justice. In that case, it was the duty of an employé of the defendant company to have the *200gates down at the time of the accident. The failure to discharge this duty, the fact, from whatever cause, that the gates, which should have been closed on the approach of a train, were oh the occasion in question left open, was, according to the intimation of the Chief Justice, in the nature of an invitation to the plaintiff to cross — an assurance to him that no train was approaching — in such sort as to make the question of his negligence vel non one of fact for the jury. Herd, it was the duty of an employé of the defendant to keep an outlook for trains, to know when they were approaching, and to ■interpose a bar, when that was the case, to the further progress of persons about to cross the track, in the shape of a signal warning them of the danger. It was this flagman’s duty, not only to know that a train was approaching, but to see, in that contingency, all persons about to come upon the track. This duty, so far from being relieved by the fact that a train had been standing on or passing along the further track from the watchman, was accentuated thereby, since it was but reasonable to suppose that there would be travellers whose progress had been impeded by it, waiting to cross as soon as it was moved out of the way. All presumptions are favorable to the discharge of duty. The presumption here was, that if a train was approaching, the flagman, whose duty it was to know the fact, did know it. The further presumption is, that knowing that fact, he would discharge his further duty of warning the plaintiff of it. The plaintiff', seeing the flagman at his post, and receiving no intimation 1'rom him that it was dangerous to cross, may have been very naturally lulled into a sense of the safety of the attempt he was about to make. He had a right to assume that the watchman was discharging the functions of his position, and that his attitude at the moment of the disastrous attempt to cross was in the nature of an assurance that it was safe to cross, and an invitation for him to do so. The attitude of the employé was inexplicable upon any other hypothesis, which would be consistent with the duty he owed plaintiff, and which plaintiff was authorized to presume he would discharge, and was discharging at the moment he went upon the track, I can not escape the conclusion that, in view of the watchman’s attitude, importing in some sort an assurance of the absence of danger, calculated to allay circumspection on the part of the plaintiff, the question of contributory negligence should have been, and was properly, submitted to the jury, although the evidence is without conflict that plaintiff failed to stop, to look and to listen.