dissenting.
I am unable to assent to the opinion of the majority of the Court because in my view it fails to recognize a sound principle of law, — accepted by this Court a decade ago, and, in effect, overrules two well considered cases of this Court.
On trial of said cause, after plaintiff rested, the court, on motion of defendant, directed a verdict for the defendant upon the ground that the plaintiff had not shown that her intestate was free from contributory negligence.
*197In considering the question whether the court erred the evidence must be taken in its most favorable light for the plaintiff. Boyden, Admr. v. Fitch. R. R. Co., 72 Vt. 89; Smith v. N. Y. Cen. & Hud. River R. R. Co., 177 N. Y. 224, 69 N. E. 427. If there are opposing inferences to be drawn from the evidence and circumstances bearing upon the question of contributory negligence it was ‘ the duty of the court to submit that question to the jury. This proposition has been too long and too well settled to call for authorities. The inferences which a court might draw from the evidence are not controlling, the question is what inferences might a jury legitimately and reasonably draw therefrom. Boyden, Admr. v. Fitch. R. R. Co., 72 Vt. at p. 95.
While the statement of facts in the majority opinion does not differ materially from the following, I have recited certain facts appearing in the record (not recited in the majority statement), especially with reference to the character,, habits, and caution of plaintiff’s intestate, which seem to me to have an important bearing upon the question of contributory negligence.
At Wallingford yard on the date in question the defendant’s main line ran northerly and southerly on a curve, with the bend towards the west,1 — the degree did not appear. On the east side of the main line running to a point north of where the accident occurred there was a switch track or siding. Running from the depot on the east side of the switch track to a point near the crossing where the accident occurred was a spur track. On the switch track or siding, there were three or four box freight cars, on the south side of the crossing, the nearest within thirty feet of it. At the north side of the spur track there was a platform for loading cars. Beside it was a pile of pulp wood, (the north end within fifteen feet of the crossing) of fifteen or twenty cords, ranging from five to eight feet in height; and there were a few ears on the spur track.
It did not appear how far it was from the spur track to the siding, but from the siding to the main track was about ten feet. (The majority opinion adopts “five” feet. There was evidence tending to show that it was “five” feet, and that it was “ten” feet. I adopt that most favorable to the plaintiff). It was in evidence that you could not see southerly from the crossing, on the main line, until within three dr four feet of it (and when *198within the zone of danger) and then only ten or twelve rods. It did not appear how far south of the crossing the depot was, nor the size or exact location of it, except that it was on the east side of the main line. From south of the depot running along beside the spur was a traveled road leading north of the crossing, called Railroad Street. The crossing where the accident occurred was on a street called Mill Lane, running in an easterly and westerly direction.
On the evening of the accident, Sunday, January 3rd, 1904, it was cold and blustering with the thermometer twenty degrees below zero and the wind blowing from the north; there had been a fall of light snow, and snow was in the air; some lights had been lit. The accident occurred from a quarter to half past five in the evening. Defendant was running a “wild engine” towards the north very fast — two witnesses say at the rate of a mile a minute — several witnesses located at different places say it was running very, very fast, that the. fact was commented upon at the time, and the engine did not slow up while passing through the village. There was no headlight and no warning by blowing a whistle, (except at a crossing about one-half mile below and southerly of the station) or ringing the bell. When the engine passed through the yard it was emitting clouds of smoke and steam, that settled down around it so that it could hardly be seen — the smoke and steam remaining for a minute or more after the engine passed.
Some said there was a loud rumbling noise, but this was not noticed by a witness seven or eight rods west of where the accident occurred. He testified that clouds of steam and smoke were all around the engine; that the smoke and steam from the engine when seven or eight rods away was what attracted his and his brother’s attention.
While two regular trains ran through Wallingford Sunday, it was unusual to run “wild engines” on Sunday. It must be conceded that by reason of the location of the track, the pile of pulp-wood, and cars, as well as the curve that obstructed the vision until close to the main track, the speed at which this “wild engine” was run on Sunday evening, without headlight, not slowing up in the village nor giving warning, was gross negligence.' '
*199The decedent was a man forty-six years old, sober, industrious, with a wife and three children, and a good provider. His son, who was nineteen years old when his father was killed, testified that while he was deaf, they had no difficulty in conversing with him; that he was more cautious than people generally. In cross-examination he was asked 1 ‘ So that any person about to cross that crossing would feel it jar.” He an-, swered “Yes, sir, and he (referring to his father) naturally would because he was very cautious, he was more cautious than people generally.” In re-direct he said, “Always very cautious, any noise, when a train would be going by the house, he would always know just as quick as the rest of us.”
Decedent’s .house was a short distance east of the crossing and he went over that crossing for years, four times a day to and from his work, and was perfectly familiar with it. On the night in question he left his house to get a Sunday paper somewhere down on Railroad Street; returning he started to cross the tracks and his body was found, with the left leg severed, about one-half mile north, on the following .morning. No one saw him when the accident occurred or could tell just how it occurred.
Railroad street was four or five rods wide at the crossing. A lady in the corner house on the east side, southeast of the crossing, looking diagonally through the north window, saw the back and side of a man for an instant only, but not plain enough to know who it was. She thought he was tall but could not tell whether he was large or small — she emphasizes that it was only a second by repeating that word several times. She thought he was between the main track and siding. She did not testify whether standing still or walking. She could not tell whether lie had on a cap or not. She heard the engine but did not see it. She was not much alarmed, for she thought if he went straight across he would get across, but if he did not go straight across he might get hurt.
Another lady, who was a witness, lived in the second house east of the corner, on Mill Lane. She heard the engine and got up and went and looked out of the window and saw a tall, slim man whom she did not know, going west towards the railroad crossing, almost onto the switch. When the engine passed, the smoke and steam hid him. The smoke and steam were down *200towards the track and lingered for a minute or two. There was lots of fire as the engine passed and the snow flew. She said the man she saw was walking fast — with his cap pulled down over his ears, with his hands in his pockets, looking straight ahead so that he could see anything in his way. The thought* came into her mind that he might be harmed by the engine.
The witness before alluded to, who, with his brother, was a short distance west of the track, did not see Shumm at all.
It cannot be claimed, in the circumstances, the location of the houses, the time in the evening, the casual seeing of a man whom they did not recognize, that the tenor of the evidence of the two ladies is very satisfactory, or that a jury would have found, from such evidence, that plaintiff’s intestate was guilty of contributory negligence.
Still the majority opinion with no other basis than the evidence of the two witnesses just referred to, who were in houses east of Railroad Street, says: ‘ ‘ The intestate was. under observation as he approached the track, and almost until the moment of the accident. The undisputed evidence is- that he was walking rapidly and looking straight ahead as he passed along the crossing, and that when last seen he had entered the space between the siding and the main track, and was still looking and walking straight ahead.”
An instantaneous looking through a window, diagonally, without being able to distinguish the person, can hardly be called ‘ ‘ observation. ’ ’
At the time these witnesses saw him it would have been absolutely useless to have looked south, for he could not have seen past the wood and cars until he had walked several feet farther, and then only when so near the main line as to be in the “zone of danger.”
The fact is beyond cavil that no one saw him when decedent could have seen or apprehended danger. Again, the majority opinion assumes that he was traveling at the rate of four miles an hour. If so, witness Pickett and his brother must have seen him.
While one witness uses the word “rapidly” as applied to his walking, it must be borne in mind that it was very cold, the wind was blowing from the north and the ground was frozen.
*201It is submitted that three miles an hour would be rapid under such conditions.
The engine was running at the rate of about eighty-five feet per second. It would only take two seconds from the time it came in sight, near the main track, for it to pass.
The witnesses on the opposite side heard no signal, and their attention was attracted only by the escaping smoke and steam. Just what transpired in two or three seconds no one knows. As that “wild engine” came bowling along, surrounded by smoke and steam and snow, without warning, plaintiff’s intestate was caught- and carried to his death — -just how no one can conjecture. We know that his left leg was cut off, his right arm broken and he was badly bruised, but none of these injuries give a clue as to how he was struck or caught.
The burden of proof was upon the plaintiff to show that decedent was not guilty of contributory negligence. While in this State, it cannot be presumed, as matter of law, that the decedent was in the exercise of due care and prudence, it must be conceded that, if the facts and circumstances tend to show that plaintiff’s intestate ivas in the exercise of due care and prudence, that question should have been submitted to the jury.
Dresser on Employer’s Liability, p. 375, referring to states where the rule is similar to our own, says: “It must in some way appear from the plaintiff’s evidence that he exercised care, but direct affirmative evidence of the plaintiff’s care is not required, and his due care may, upon all the circumstances, be inferred from absence of fault.”
In Mayo v. Boston & Maine R. R. Co., 104 Mass. 137, it is held that to sustain an action for an injury received by the plaintiff through the defendant’s negligence, it is not necessary for the plaintiff to prove due care on his part by direct affirmative evidence, but the inference of such care may be drawn from the absence of all appearance of fault, either positive or negative, on his part, in the circumstances under which the injury was received.
Bobinson, J., in Pittsburgh etc. By. Co. v. Parish, 28 Ind. App. 189, 62 N. W. 514, 91 Am. St. Eep. 120, well says: “Slight positive testimony, whether circumstantial or otherwise, when taken in connection with the instincts of self-preservation, and the desire to avoid pain or injury to one’s self, may be sufficient *202to support a conclusion that one who suffers injury did not help to bring it upon himself”; and cites Allen v. Willard, 57 Pa. St. 374; Chicago etc. R. R. Co. v. Gunderson, 174 Ill. 495, 51 N. E. 708; Hophinson v. Knapp, 92 Ia. 328, 60 N. W. 653; Greenleaf v. Illinois etc. R. R. Co., 29 Ia. 14, 4 Am. Rep. 181; Gay v. Winter, 34 Cal. 153; Evansville St. R. R. Co. v. Gentry, 147 Ind. 408, 44 N. E. 311, 37 L. R. A. 378, 62 Am. St. Rep. 421; Cincinnati etc. R. R. Co. v. McMullon, 117 Ind. 439, 20 N. E. 287, 10 Am. St. Rep. 67; Illinois etc. R. R. Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358; Citizens’ Street R. R. Co. v. Ballard, 22 Ind. 151, 52 N. E. 729.
What are the facts and circumstances making in plaintiff’s favor ?
Negligence is a shortage of duty which one owes to another. It is not presumed. Contributory negligence has this additional feature, it is a shortage of duty which one owes to himself. If negligence cannot be presumed, how much less can contributory negligence ?
Mr. Shumm approached that crossing with full knowledge as to conditions so far as pulp-wood, cars and obstructed vision were concerned. This was a circumstance prompting care. He was of mature age, with a family dependent upon him, temperate, prudent and “more cautious than men in general.”
While it is true that he was deaf, it is common knowledge that when one faculty is impaired, others take up its work. And the evidence shows that “any noise, when a train would be going by the house, he would always know just as quick as the rest of us.” His wife said he always felt a jar; they attracted his attention by stamping on the floor.
It is said in the majority opinion that “the case leaves the side-track to the north unobstructed; so the last look should have been to the south.” I cannot subscribe to this. It is the calm deliberation of the jurist, not upon the ground, nor in the presence of danger, but in the quiet and security of his study. Such deliberation has never been, and in my opinion never should be, the test. No man is required to use greater caution than that of a man of ordinary care and prudence in the same circumstances. Had he looked south and seen nothing, and then looked north, during the time occupied, the engine would have been down upon him without warning.
*203The majority opinion says that “it is not necessary that the evidence be that of an eye witness, ’ ’ and quotes from Lazelle v. Newfane, 69 Vt. 306, 37 Atl. 1045, “the jury might well infer that the plaintiff, presumably possessing the common instincts of self-preservation did not contribute in any degree to the accident,” but criticises and attempts to limit the scope of that decision.
In my opinion the quotation is a sound proposition, and the instinct of self-preservation should have been weighed with other evidence and circumstances in the case, tending to show that plaintiff’s intestate was not guilty of contributory negligence. Had this been done, who will question but what there were opposing inferences to be drawn from the evidence ? What would a jury whose special province it is to pass upon such questions have said! The answer is self-evident.
After the decision in Lazelle v. Newfane, 69 Vt. 306, and the decision in Boyden, Admr. v. Fitch. R. R. Co., 72 Vt. 89, the profession understood that Yermont was placing herself in line with the decisions of other states, and that if no one saw the decedent when killed, it would be presumed that he was exercising due care; but if those cases are not to be construed as going to that extent, if the case at bar is to be measured by the standard of either, it should have been submitted to the jury upon the question of contributory negligence.
Quoting from the opinion of Taft, J., ‘ ‘ To entitle the plaintiff to recover, it was not necessary that there should have been an eye witness to the transaction, who can be called to testify to the circumstances attending the accident; the direct testimony of a person witnessing the accident is not required; the manner of the accident, the cause of it and fault, if any of either party, may be inferred from the facts shown and detailed by the witnesses.”
In another part of -the opinion the Court says: ‘ ‘ The jury might well infer that the plaintiff, presumably possessing the common instincts of self-preservation, did not contribute in any degree to the accident.”
Again: “They could infer from the circumstances shown by the testimony, the neglect of the town, the proximate cause of the accident, that the plaintiff was without fault.”
*204In Boyden, Admr. v. Fitch. R. R. Co., Watson, J., on p. 94, after referring to the negligence of defendant, says: “It may be reasonably inferred from the circumstances, taking into con" sideration the disposition of persons to take care of themselves and avoid injury, that, while waiting for the freight train to pass, and until they started along, the decedent and his companions looked and listened to guard against any west-bound train which might be approaching on the northerly track.” Lazelle v. Newfane, and Baltimore etc. R. R. Co. v. Griffith, 159 U. S. 603, 16 Sup. Ct. 105, 40 L. Ed. 274, are cited, and the court concludes: “and not seeing nor hearing any, thought it safe to cross.” Further on: “A jury might find from the evidence and the legitimate and reasonable inferences therefrom, that whhn the team started along, the express train had not come in view, with the track unobscured, and when approaching, the noise made thereby so mingled with or was drowned by the noise of the freight train that, in the absence of the usual warning by whistle or bell, the decedent and his companions were deceived into thinking there was no train approaching.”
The decisions in Lazelle v. Newfane, and Boyden, Admr. v. Filch. R. R. Co., were apparently given after mature deliberation. More than a decade has elapsed since the first, and nine years since it was followed and quoted from with approval in the second case. In the first case Start, J., submitted the question to the jury. The opinion of the Court was by Taft, J., and was concurred in by Ross, C. J., Rowell, and Tyler, JJ. The opinion in the last case was by Watson, J., and was concurred in by Rowell, Tyler, Start, and Thompson, JJ. While it is true that Munson, J., appears as dissenting, no dissenting opinion was given by him.
The majority opinion, referring to these decisions, says they are “clearly inconsistent with our established doctrines. The instinct of self-preservation cannot be made the basis of a presumption that due care was exercised, where the burden of proving due care is placed upon the plaintiff. Nor do we consider this instinct entitled to recognition inconsistent with our rule.”
As I read the opinion it does away with the settled and accepted law since Lazelle v. Newfane, and Boyden, Admr. v. Fitch. R. R. Co., but the majority opinion leaves the profession *205to speculate as to how much if any of the law laid down in those eases is still the law in this State.
These decisions are in line with the judicial utterances of the highest court in the land and with the later decisions of a large number of states, among which may be numbered the' United States Supreme Court, the Federal Courts, Maine, New Hampshire, Rhode Island, New York, Pennsylvania, Wisconsin, Michigan, Missouri, Illinois, Iowa, Maryland, Indiana, California, and others.
If our decisions are in conflict with doctrines established by our Court before the decisions were rendered, is that a reason why they should be reversed, the hands turned back upon the dial, and we go back to a decision that is arbitrary and so severe that, regardless of the fact, if there was.no eye witness to the circumstances attending death by negligence, the decedent’s next of kin are without remedy because they cannot show by direct and positive evidence freedom from negligence?
Mr. Wigmore in his work on Evidence, Yol. IY, sec. 2570, says: “The natural instincts of human conduct with reference to care and negligence at a time of danger may be considered.”
It may be well to quote from some of the decisions. Mr. Justice McKenna in B. & P. R. R. Co. et al. v. Lanrigan, Admr., 191 U. S. 461, 24 Sup. Ct. 137, 48 L. Ed. 262, says: “There was no error in instructing the jury that, in the absence of evidence to the contrary, there was a presumption that the deceased stopped, looked and listened. The law was so decided in Texas & P. R. R. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186. The proposition is founded on a law of nature; we know of no more universal instinct than that of self-preservation, none that so insistently urges to care against injury; it has its motive to exercise in the fear of pain, maiming and death; there are few presumptions based upon human feelings or experience that have surer foundation than that expressed in that instruction.”
Doe, C. J., in Huntress v. R. R. Co., 66 N. H. 185, 34 Atl. 154, says: “Where there is no evidence of insanity, intoxication or suicidal purpose, and no evidence on the question of his care except the instinct provided for the preservation of animal life, it may be inferred from this circumstantial proof that, for some reason consistent with ordinary care and freedom from *206fault on his part, his attempt to cross was due to his inadequate understanding of the risk.” This opinion is criticized in Wright, Admx. v. B. & M. R. R., 65 Atl. (N. H.) 687, 8 L. R. A. 832. The learned judge delivering the opinion concludes as follows: “Whether the fact that the deceased in this case was traveling on foot, while in the Huntress case the deceased was riding in a team, constitutes an important distinction between the two cases, it is unnecessary to inquire. If it does not, the Huntress case must be overruled. ’ ’ Both opinions are cited that the profession may determine which contains the better reasoning. Many New Hampshire cases are in line with the Huntress ease. This presumption is in the nature- of evidence and may be weighed as such.
In Lyman v. B. & M. R. R., 66 N. H. 200, 20 Atl. 976, 11 L. R. A. 364, it is held, that “Although proof of due care is essential to plaintiff’s case it may, in the absence of evidence to the contrary, be supplied by the presumption that persons of mature years, in the possession of their senses are ordinarily prudent and will exercise ordinary diligence to avoid danger.”
In Johnson v. Hudson River R. R. Co., 20 N. Y. 65, 75 Am. Dec. 375, the defendant moved for a nonsuit upon the ground that the plaintiff had not shown that the deceased himself was free from contributory negligence. No witness saw the accident. The Court said: ‘ ‘ The absence of fault on the part of the plaintiff may be inferred from circumstances and the disposition of men to take care of themselves and keep out of difficulty may properly be taken into consideration.”
In Broadbent v. C. G. & T. Ry. Co., 64 Ill. Appeals 231, (1896), it was held that there is in all men a natural instinct of self-preservation, and such instinct is an element of evidence of which the jury may take notice and, in the absence of all testimony upon the subject, find that a deceased party in obedience to the ordinary instincts of mankind, exercised that care for his safety which a prudent man in the same circumstances would have made use of.
In Way v. Illinois Central R. R. Co., 40 Iowa 345, the Court said: “The instincts prompting the preservation of life are thrown into the scales as evidence, like the presumptions of sanity and innocence.”
*207In Northern Cent. Ry. Co. v. State, 29 Md. 438, 96 Am. Dec. 545, it is said: “The facts and all the circumstances of the case were proper to be considered by the jury, and in connection with these facts and circumstances, it was competent for the jury to infer the absence of fault upon the part of the deceased, from the general and known disposition of men to take care of themselves and keep out of the way of difficulty and danger. ’ ’ s
In Strong v. City of Stevens’ Point, 62 Wis. 255, 22 N. W. 425, deceased was last seen approaching a bridge in which was a hole wherein he fell and was killed. It was held that the jury might find that the accident occurred without culpable negligence on the part of the deceased. This case is cited with approval in 120 Wis. 229, 97 N. W. 946.
In Alden v. Willard, 57 Pa. St. 375, it was held that the natural instinct which leads men in their sober senses to avoid injury and preserve life, is an element of evidence.
In Penn. R. R. Co. v. Weber, 76 Pa. St. 157, 18 Am. Rep. 407, where one Weber was killed while crossing a track, the judge delivering the opinion says: “Whether he stopped, or not, before driving on the track, is matter of mere inference or conjecture, and cannot with certainty be known. On the one hand is the presumption that he stopped to look and listen. He was well acquainted with the crossing, having been accustomed to drive over it every day, and must have known the time at which the regular trains passed. He had the highest motive to take the necessary precaution to insure his safety, and the presumption is that he did. On the other hand, it may be inferred from the circumstances, that if he had stopped to look and listen he would have seen or heard the approaching train. But whether he stopped, or not, it was the province of the jury to determine as a question of fact, and not a matter of law, for the decision of the court.”
In Gay v. Winter et al., 34 Cal. 153, it is held that in cases where the negligence of the defendant is affirmatively shown, and there is no proof of the conduct of the deceased or person injured, the jury are at liberty to infer ordinary care and diligence upon his part, taking into consideration his character and habits as proved, and the natural instinct of self-preservation.
*208The case should have been submitted to the jury upon the point of no warning.
Plaintiff’s intestate had the right to believe that defendant’s engineer would obey the law by blowing the whistle or ringing the bell, but there was no evidence of any warning except the blowing of the whistle more than half a mile away with the wind blowing away from the crossing.
Watson, J., in Boyden, Admr. v. Fitch. R. R. Co., 72 Vt. at p. 93 says: “Although such negligence (failure to blow the whistle or ring the bell) on the part of the railroad company, affords no excuse to the traveler upon the highway, for his not exercising due care and prudence to avoid injury, yet the absence of such warning is a circumstance to be taken into consideration in determining whether he did exercise the degree of care and prudence required or not; for negligence cannot be imputed to a person who is deceived under circumstances calculated to deceive a prudent man.”
Collins, J., in Henderson, Admr. v. Great Northern R. R., 49 Minn. 245, 51 N. W. 1044, 16 L. R. A. 261, 32 Am. St. Rep. 540, says in substance: “Assuming then as we must, for the jury might have so determined, that no continuing or warning signals were given, it must be held that if, by reason of this omission or neglect Mr. Henderson was led to be less vigilant when driving near the railway, his view along the track being obscured until he reached the place or situation in which his life was jeopardized and finally lost, his want of vigilance cannot be pronounced culpable or contributory negligence as matter of law.”
In Pa. R. R. Co. v. Ogier, 35 Pa. 71, 78 Am. Dec. 322, it is held in substance, that if by reason of the negligence of those in charge of the train one is less vigilant, the company is not at liberty to impute the consequences of their acts to his want of vigilance, a quality of which they deprived him.
The case at bar is very similar to' one in Michigan in which an eminent jurist gave the opinion. In Teipel v. Hilsendegen, 44 Mich. 461, 7 N. W. 82, per Cooley, J.: “Nor is'it necessary that the absence of contributory negligence be shown beyond cavil or question. If the circumstances' are such that reasonable minds might draw different conclusions respecting plain*209tiff’s fault, lie is entitled to go to the jury on the facts. In this case there was no eye witness of the injury resulting in death. There was some evidence of negligence on part of the defendant and some ground for opinion that intestate was negligent also. The plaintiff put in such proof of the attendant facts as was attainable, and from these it was by no means clear that the intestate was in fault at all. There was room for the conclusion that he was not. We think the case ought to have gone to the jury.”
That other respectable authorities hold the converse view is not questioned, but the cases quoted from indicate the trend of the decisions, and are based upon sound reasoning and common sense.
That this Court made no mistake in going to the extent it did in Lazelle v. Newfane, and Boyden, Admr. v. Fitch. R. R. Co., is amply confirmed by the decisions quoted from.
The defence rely largely upon Carter v. Central Vermont R. R. Co., 72 Vt. 190, 47 Atl. 797 — a ease entirely unlike the case at bar in its controlling facts.
In that ease the Court lay down the same rule contended for by the plaintiff in the ease at bar, as to when it is the duty of the court to submit a case to the jury, and quote with approval from the opinion of Start, C. J., in Scheiber v. R. R. Co., 61 Minn. 499, 63 N. W. 1034, in which he says:
• “This rule must be applied in practice with caution, lest the courts usurp the functions of the jury, and unwittingly deprive a party of his constitutional right to a trial by jury, and if there is a fair doubt as to the inferences to be drawn from the admitted state of facts, the question must be submitted to the jury; but, in the absence of such fair doubt, it is equally the duty of the court to decide the question as one of law and instruct the jury accordingly.”
It may not be out of place to say that when two judges honestly aiming to arrive at the truth, with the same opportunities for analyzing the evidence, arrive at different conclusions as to the inferences to be drawn therefrom, it is a strong indication that reasonable minds might draw different conclusions respecting the plaintiff’s fault, and that if so, the case should have been submitted to the jury.
*210This view was taken in Smith v. N. Y.Cen. & Hudson River R. R. Co. (Court of Appeals) 177 N. Y. 224, 69 N. E. 427. In the opinion of Werner, J., concurred in by Parker, C. J., Bartlett, Martin and Vann, decided January 19, 1904, the Court say: ‘ ‘ The facts of this case fairly stated and considered in the light of the circumstances most favorable to plaintiffs do not so clearly establish contributory negligence of plaintiffs’ intestate as to remove the question from the domain of doubt into the realm of undeniable fact. In support of this suggestion, we have but to refer to the persuasive, if not conclusive, circumstance that learned judges have differed as to the effect of the evidence in this record.”
I concur in the majority opinion that notwithstanding the fact that the jury had viewed the premises, as the record stands, the court might order a verdict if the case was not one which in other respects showed that it should have been submitted to the jury.
In my opinion the judgment should be reversed.