(dissenting). I am unable to concur in the opinion of Mr. Justice Stone. Plaintiff was guilty of contributory negligence as a matter of law. Defendant was entitled to a peremptory instruction to that effect. The quoted theory and rule that a plaintiff shall not be held guilty of contributory negligence as a matter of law unless and until all reasonable minds shall so agree may be applied to a case of first impression. It can have no force as against precedent, controlling opinions of this court.
*56Of the question and upon the facts here presented the ease of Beagle v. Railroad Co., 184 Mich. 17, is decisive. The duty of the flagman was to warn travelers upon the highway against crossing the track in times of danger. Deceased was not a traveler along the highway. In his journey along the railroad track he came to a point on the track and in the highway where he stopped and engaged the attention of the watchman. It was early evening though the watchman was using a lantern, not the “stop” signal. Deceased on the track was in a place of known danger. He took no precaution for his safety. He could have seen these cars had he looked. A witness for plaintiif saw the cars when they were 800 or 400 feet from where deceased and the watchman were standing and said “I think from where Farrell (the watchman) stood they could see clear to Grace street if they had looked.” Grace street was three blocks distant. If deceased had been a traveler along the highway the fact that a watchman was on duty at the crossing would not have excused him from looking and listening and taking thought for his safety and he could not have relied wholly upon the watchman for his safety in crossing the tracks. See Beagle v. Railroad Co., supra, and cases cited. Nor could deceased, being upon the track, in a place of known danger, rely wholly upon the watchman to rescue him from such danger or to warn him of the approach of cars upon the tracks. The failure of deceased, under the circumstances, to take any thought or precaution for his safety precludes recovery. See Smith v. Railway Co., 136 Mich. 282; Berry v. Railway Co., 173 Mich. 181; Gillett v. Traction Co., 205 Mich. 410; Colborne v. Railway, 177 Mich. 139; Manos v. Railway, 168 Mich. 155; Matta v. Railway Co., 69 Mich. 109; Kwiotkowski v. Railway Co., 70 Mich. 549; Miller v. Railway, 200 Mich. 388; Strong *57v. Railway Co., 156 Mich. 66; Pershing v. Railway Co., 206 Mich. 304; Hardy v. Railway Co., 208 Mich. 622; Groves v. Railway Co., 210 Mich. 409.
Judgment should be reversed, with costs to defendant, and a new trial granted.
Fellows, J., concurred with Claek, J.