concurring:
I concur in Judge Chinn’s opinion for the following reasons:
1. I am satisfied that the first assignment of error cannot be considered, as this court is without jurisdiction to entertain it. This leaves for our determination the two remaining assignments of error, which constitute the two grounds, assigned in the trial court, for the demurrer to the evidence.
2. The ground of demurrer, resting upon the contention that the plaintiff’s intestate was negligent and his negligence was the sole and proximate cause of his death, is an affirmative defense and .the burden of establishing it from the evidence is upon the defendant. Applying to the evidence the principles governing a demurrer to the evidence, it cannot be said that the testimony shows the facts, upon which the demurrer in this respect was based, so conclusively that the court would be justified in withdrawing the ease from the jury.
The testimony bearing upon the issue as to the decedent’s negligence, permissible to be considered under the governing rules of law, is vague and indefinite and leaves the question of his negligence rather a matter of speculation than a fact to be gathered either by fair inference or from direct evidence.
3. The additional ground of the demurrer, viz: That the decedent assumed the risk of receiving the injury which caused his death, involves the determination of *409two questions of fact, (a) whether there was a rule of the company, or a custom in the operation of the work in its yard, which gave the yard employee a right to 'expect that there would be a light upon the tender of the engine in question as it went through the yard on the main track in the manner appearing in the evidence, (b) whether there was such a light upon the tender just preceding the death of the plaintiff’s intestate.
There was plainly a conflict of testimony upon both of these questions, and hence upon a demurrer to the evidence the court cannot undertake to pass upon the preponderance of the evidence, but must overrule the demurrer.
The consideration of the case by this court is restricted to the two errors, which are sufficiently assigned. We can review the evidence for no other purpose than to ascertain whether the trial court was correct in its ruling that the two grounds of the demurrer to the evidence were not well taken and therefore the demurrer should be overruled. I think that Judge Chinn in his elaborate and exhaustive discussion of the ease has reached a proper conclusion, and the judgment of the trial court should be affirmed.