concurring.
I fully agree with all that is said in the foregoing opinion, and think that the case should be affirmed for the reasons above given. ' I wish to add, however, that I think the evidence shows that the plaintiff in error was guilty of contributory negligence and that on that account alone the law can afford him no relief.
Sedgwick, J.On account of the importance of the question involved, and the difference of opinion of the commissioners, argument was had before the court. There can be no doubt that, if the company acted in good faith, and with an honest desire to adopt the methods best calculated to promote the safety of its employees generally, as well as of the traveling public, it can not be charged with negligence, even though we should believe from the evidence before us that the purposes the company had in view would have been better served by blocking the rails, as plaintiff contends. There is still less reason to impute negligence to the company if the evidence shows that in the present condition of experience, it is impossible to say which method, upon the whole, affords the best guaranty of immunity from danger.
It was contended upon the argument that the claim that the unblocked guard-rail is less dangerous than the blocked rail was an afterthought, and not urged in good *650faith, by tbe company, and that for this reason the case should have been submitted to the jury.
Of course, the question of good faith on the part of the company in determining the advisability of blocking the guard-rails is a question of fact, and as such, when in dispute, is to be determined by the jury. If there was no reasonable ground for doubt as to the better course to pursue, the company .can not defend against a charge of negligence by urging that it was in doubt, and acted on its best judgment. But if the best course to pursue, in the interest of the safety of the employees and of the traveling public alike, was an open question and difficult to determine, the company can not be charged with negligence in having adopted the one course rather than the other.
Upon examination of the evidence, it appears that there is no dispute that the safety of the employees of the company and the safety of the traveling public are both involved in the determination of the question of the advis-abilty of blocking the guard-rails. So far as safety to the employees is concerned, there is a large mass of testimony from which it can not be determined with any degree of certainty which is the better practice; and when we further consider that there is much apparently reliable evidence tending to sIioav that danger to the traveling public is increased by the practice of blocking the rails, and no evidence is offered to show that any system of blocking can be adopted without increasing that danger, we think there is an entire failure of proof that the company acted in bad faith in adopting the unblocked system.
We have therefore adopted the majority opinion of the commission, as prepared by Mr. Commissioner Ames, and the judgment of the district court is
Affirmed.
By the Court': For reasons stated in the foregoing opinion, it is ordered that the former judgment of this court be vacated and set aside and the judgment of the district court be affirmed.
*651Note. — Oontributory Negligence — ■Pleading—Corporate Existence — Master and Servant — Assumption of Rislc by the Latter. — Contributory negligence is purely a matter of defense, which a plaintiff is not bound to negative in Ms complaint;* its existence is not — as applied to the conduct of a party — a mere conclusion of law, but an ultimate pleadable fact. Rolseth v. Smith, 38 Minn., 14, 8 Am. St. Rep., 637; O’Connor v. Missouri P. R. Co., 94 Mo., 150, 4 Am. St. Rep., 364; Potter v. Chicago & N. W. R. Co., 91 Am. Dec., 444; Georgia P. R. Co. v. Propst, 85 Ala., 203.
The court can judicially know of the existence of a public corporation — -railroad company — without a pleading. Baltimore & O. R. Co. v. Sherman’s Adm’x, 30 Gratt. [Va.], 602.
The assumption of risk by a servant; his knowledge of the danger; his continuation in service with such knowledge; his continuance under promise .of master to remove danger. See notes on pages 736 and 810, 9 Am. St. Kep. — W. IT. B.
A contrary rule, however, prevails in Indiana.