dissenting. — I. The court instructed the jury as follows;
“VII. The defendant has the right to use its track for the passage of trains at all hours and times, and with such frequency as it desires, and it is the duty of all persons about to step on such track to conduct themselves with reference to such rights, and to exercise care and caution relative thereto. No person ha's a right to assume, when about to go onto a railroad track, that a train is not coming, without looking for himself to see whether one is coming. The track of a railroad is a place of danger and a place where the trains have the first,' that is, the prior and paramount, right, and all 'per*345sons about to go onto it must go there knowing the clanger, and the prior right of the trains, and conduct themselves with due care.”
This-instruction constituted the law of this case, whether correct > or not, and it was the duty of the jury to have followed it. The undisputed facts are, and it is conceded in the foregoing opinion, the deceased stepped on the track without looking in the direction the detached cars were coming. If he had done so the undisputed fact is he could have seen the cars. If, therefore, the jury had followed the instruction their verdict must have been for the defendant.
. The opinion holds the deceased was not bound to look, because he had the right to suppose all the- train had just passed and there were none following so closely after the cars which had passed. It is evident the case was not tried in the' court below on any such theory. It is immaterial that the detached cars formed only a portion of a train instead of a whole train, where the result must have been the same if the deceased had “ looked ” as the instruction requires he should havé done.
II. The defendant asked the court to instruct the jury as follows: “ If you believe from the evidence that the deceased, at the time of this accident, was walking length-ways on defendant’s track, and that the point where he was walking was not a public highway, then to be lawfully there he must have been engaged in the performance of some duty to defendant, requiring him to be thus walking on said track.” This 'instruction was refused. It should, I think, have been given. It whs for the jury to say whether the deceased was lawfully on the track in the performance of some duty. If this be not so, it is strongly favorable to the plaintiff. But the opinion holds as a matter of law the deceased was lawfully on the track in the performance of some duty. This, in my judgment, is radically wrong. There are other views stated in the opinion in which I do not concur, but I do not care to extend this dissent, and therefore do not- enter upon their discussion. ¡