(dissenting): The foregoing is the opinion of the majority of the court, and from it the writer thereof dissents. I am in hearty sympathy with the doctrine that one may not expose himself heedlessly and without excuse to the danger of being run over by a passing train by standing upon or near a railroad-track,, giving no adequate. attention to the dangerous surroundings, and then hold the company responsible for the-result. But the circumstances of these cases are such that, to my mind, the question whether under all the circumstances the deceased persons were not excusable was a debatable one—one on which the minds of men of equal experience and *627judgment might differ, and, hence, one peculiarly for the jury. It will be borne in mind that the night was cold and windy, the ground to some extent covered with snow, the tracks over which these parties were going but slightly, if at all, observable by reason of' the fact that the tops of the rails were even with the-sidewalk; that on the one side of track 4 was the moving train, on the other the standing car ; that the-light of the electric lamp was at such an angle that-the space between was unilluminated; that the noise of the moving cars would prevent any one from hearing a car coming along track 4; that the smoke and steam from the engine moving on track 3, the darkness of the night and the absence of light prevented the parties from seeing it. All these facts, and perhaps others, tended to relieve them from the charge-of negligence in taking the position they did ; at least* it was so uncertain that the court should have submitted the question of contributory negligence to the jury.