dissenting.
I think that to walk with one’s back to a live engine between the tracks of a road on which that engine may readily be moved, on a dark night, in a switch-yard, where it is well known that switching is being done, and it is well known that engines are standing ready to be moved at any time, and without any attempt to ascertain if an engine is approaching, is of itself such prima-faeie negligence as to make it necessary for the plaintiff to prove that there was no other reasonable and proper route upon the road-bed and right of way, or otherwise, whereby deceased could have gone from the depot to the caboose, and in the absence of such proof the plaintiff could not recover.
2. Under such conditions the question put to one of plaintiff’s witnesses npon cross-examination, as to whether *580a person could, travel to the north end of the yard from the depot between the main line track and the switch-track, was a proper question upon cross-examination, and to exclude this line of cross-examination was error which calls for a reversal of the judgment.
The following opinion on rehearing was filed on May 20, 1903: Stare Decisis. Upon rc-examination of the cause, the judgment heretofore rendered is adhered to.3. I think the sixth instruction given by the court on its own motion was erroneous. It purports to tell the jury what facts must necessarily be found in order to find a verdict for the plaintiff, and it omits an essential element of the plaintiff’s case. It may under the circumstances have been prudent to have traveled over the defendant’s right of way or even over the road-bed, and imprudent to have traveled upon the track between the rails, and the distinction should have been made plain to the jury. The phrase “went upon the right of way and track of the defendant company,” uniting the two together, may well have led the jury to suppose that they were not to make any distinction, so that unless it was negligent to go upon the right of way at all, it would not have been negligent to walk between the rails of the track, and I think the jury should have been told that unless circumstances were such that it was necessary for the deceased to place himself between the tracks, such act must be considered negligent on his part.