concurring: If it be conceded that the defendant in this case was negligent, I concur in the decision, for the reason that, accepting all of plaintiff’s evidence as true, and taking every permissible inference arising on the entire testimony and which makes for his claim, as established, it appears that *414when be was killed tbe intestate was voluntarily walking- along tbe main line of defendant’s track, at. a time and place where a train might be expected any moment, in broad daylight, in tbe full possession of bis faculties, and with nothing to restrain or binder bis movements, without paying tbe slightest attention either to bis placing or surroundings. There is nothing, therefore, to qualify the obligation that was upon him to be careful of his own safety, and, to my mind, it presents a typical case of contributory negligence, negligence concurring at the very time of the impact, and recovery by plaintiff is therefore properly denied.