dissenting.
I can not agree with the- majority of the court that the record presented here shows no negligence on the part of the defendant below or conclusively shows contributory negligence on the part of the plaintiff below.
There-is evidence of negligence on the part of the railroad company, and in my opinion no direct evidence of contributory negligence on the part of plaintiff, and in the absence of evidence to the contrary there would be rather a presumption that plaintiff looked and listened before attempting to cross Baltimore & P. Ry. v. Landrigan, 191 U. S. 461 [48 L. Ed. 262; 24 Sup. Ct. 137]. Different minds might reasonably arrive at different conclusions, and this record presents a case where in my opinion, it was the duty of the court to submit the questions, both of negligence and contributory negligence, to the jury under proper instructions and it would have been error for the court to direct a verdict for the defendant. Cleveland, C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Cincinnati *373St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. 207; 32 L. R. A. 276]; Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. 325]; Gibbs v. Girard, 88 Ohio St. 34 [102 N. E. 299; 1914 C. Ann. Cas. 1082].
The jury having passed upon the question of negligence and of contributory negligence, I do not think that the record is of such character that the reviewing court should say that their verdict is so manifestly against the weight of the evidence that it should be set aside.