dissenting. — Being unable to concur in the foregoing opinion, I deem it proper to briefly state the reasons for my dissent therefrom.
• No one, unless it be the fireman on the train, except the plaintiff, testified in relation to the collision, and in this respect I do not understand it is claimed there is any difference in the testimony on this and either of the former trials.
When the cause was returned to the court below after it was first reversed by this court, the plaintiff amended his petition and stated that certain obstructions had been placed near the track by the defendant, which obstructed his view and prevented him from seeing the train, notwithstanding the use of due care and vigilance on his part, and the judgment of the court below is now affirmed, on the ground that the testimony in relation to these obstructions materially strengthens the testimony on the part .of the plaintiff as to the question of contributory negligence on his part.
Deeming this to be a grave error, I desire to refer with some particularity to the evidence on this point. It would unnecessarily lengthen this opinion to quote all the testimony, but I will quote in full all that the plaintiff states. He testifies: “There were railroad timbers lying along the railroad piled up five or six feet high. This was piled up about sixty steps from the crossing. There were railroad ties piled up between the track and Mathews’ fence. They obstructed my view and I could not see in.”
Some of the other witnesses corroborate the testimony, and others introduced by himself do not support him in all that he has said.
It is a conceded fact that the plaintiff lived near the crossing and was daily in the habit of crossing- the track at the point of collision.
This court having determined when this case was first here, that the plaintiff could not recover by reason of contributory *292negligence on liis part, and the testimony being in no wise different now from then, exceptas to the obstructions of which he speaks, the simple and single point for determination is, do such obstructions in any way or degree change the legal aspect of the case.
It will be observed the plaintiff places the obstructions sixty yards or steps from the point where the accident occurred. It is evident and a conceded fact, that the nearer the plaintiff got to the crossing the better was the view in the direction the train was coming. If the plaintiff had looked during the time he was traveling the sixty yards or steps, he must have seen the train; or if he had looked up the track just before he drove on, it is self evident to my mind and clear beyond question that he could have seen the train. The obstructions about which the plaintiff testifies could not in any degree whatever have prevented him from seeing the train, had he looked up the track when he was within ten steps of the crossing. To me this is self evident, and in my judgment a reference to the plat of the premises, on page 155, 34 Iowa, makes this so clear to the mind as to render it difficult for any amount of human testimony to make it obscure.
It is not due diligence, but is contributory negligence, for one acquainted with a crossing over a railroad track, and knowing when he is near it, not to look for an approaching train. Benton v. Central R. R., 42 Iowa, 192. This last case is an authority in point against the opinion of a majority of the court in the case at bar.
It is true the plaintiff testifies he did look when he was ten steps distant from the crossing, but this testimony was effectually disposed of by this court on the former appeal. 34 Iowa, 159. It is there said, with reference to this very testimony, “ that the conceded or undisputed facts being true, this testimony cannot, in the very nature of things, be also true. It constitutes, therefore, no conflict.” If this was true then, it is equally so now.
In my opinion, the judgment of the court below should be reversed.
Justice Rothrook concurs in this dissent.