(dissenting.) As a general proposition I have no quarrel with the statement of the rule .as contained in the third paragraph of the syllabus, namely, that the law, out of regard to the instinct of self-preservation, will presume that the person who has suffered death by accident was, at the time, in the exercise of ordinary care and diligence, and this presumption is not overcome by the mere fact of the accident, even though no person saw it. But under the facts disclosed by the evidence in the case at bar, I am satisfied that this rule is not applicable in the present instance. *382•Several witnesses testified as to the severity of the storm at the time the accident occurred. The train which killed the deceased could be seen for some distance. One witness testified that he saw it 336 feet distant. Another saw it at a distance of 150 feet at the exact time of the accident. Others testified in a general way that they could see acress the street, and others greater distances. That it was incumbent upon the deceased to exercise care proportionate to the atmospheric and other conditions cannot be questioned. Did 'he do so? It is clear to me that the evidence establishes beyond question that he cannot have done so. It was his duty to look and listen even though he had been on the highway. If he had looked and listened it is obvious that he could have seen the train, and, at the rate of speed at which it was moving, could either have avoided stepping on the track, or, if on it, could have got off. The fact that he was killed under the circumstances disclosed by the evidence makes it apparent that he did not look and listen, or use ordinary precaution or such care as was incumbent upon him to use, and therefore I am of the opinion that the evidence discloses affirmatively that he was guilty of contributory negligence, as a matter of law.
I therefore dissent.