(dissenting). I dissent. I do not regard the ver.•dict, as reduced by the court, as excessive, for the plaintiff was permanently and very seriously crippled. But I am of the opinion that it would be almost impossible to find a case, if this be not one, in which a court could say, as a matter of law, that the negligence mf a plaintiff was conclusively established by the evidence.
When instructing the jury, the court charged explicitly that although plaintiff was riding in Pomeroy’s wagon upon invitation; and had no control over the team or driver, the duty was upon him to exercise the same care when approaching the crossing, and to be as diligent as to coming trains, as if he was driving his own team; and to this positive instruction plaintiff’s counsel took no exception. That the jury disregarded this statement of the law is evident, for it must be conceded that had plaintiff been driving he could not have recovered. I do not claim that the charge of the court below on this point was an accurate statement of the law which should have governed the plaintiff’s case, but, in any event, plaintiff’s coun*83sel, when contending that the driver’s palnable negligence should not be imputed to their client, requested that the jury be charged that if he was guilty of negligence or of want of ordinary care, which contributed to his injuries, he could not recover. That this proposition is abundantly supported by the authorities cannot be questioned. Beach, Contributory Negligence (2d Ed.) § 115, and citations; Allyn v. Boston & A. R. Co., 105 Mass. 77. See, also, other cases commented upon in the main opinion.
At the crossing- in question, the defendant’s tracks were on an embankment, or fill, 9 feet above the natural surface of the ground. This fill gradually decreased to the west, until it reached a cut about 1,450 feet from the crossing. For several hundred feet westerly, this cut was slight and not deep enough to conceal from view any part of a locomotive above the wheels. It was demonstrated to a certainty at the trial that when on the highway 170 feet north of the crossing the plaintiff and his companions could have seen a train, if they had looked, at any point within 1,500 feet. At 100 feet from the crossing the approaching train was plainly visible for more than 2,300 feet, and, as a matter of fact, when the plaintiff and his companions were 100 feet northerly of the crossing the train was within 1,500 feet thereof, upon the top of an embankment, and necessarily within plain sight of the most indifferent of travelers. The train was so noticeable that in the prevailing opinion it is stated, notwithstanding plaintiff’s positive testimony that he did look and did not see, that “it must be considered as conclusively established” that plaintiff did not look for a coming train.
If it is conclusively established by the evidence that the plaintiff did hot even look for the train which he knew was due about that time, at a crossing with which he was thoroughly familiar, standing-up as he was, and having much better opportunities for looking and listening than had his companions, who were sitting on a seat so low that little more than their heads appeared above the sides of the wagon box, it seems to me that there can be no escape from the conclusion that, as a matter of law, not only did he fail to exercise ordinary care and prudence, such as an ordinarily prudent man would observe, but that he was extremely careless and negligent. To excuse him under such circumstances, to absolve him from the charge of contributory negligence, is to say that he who rides in a *84private carriage at the invitation of the driver may close his eyes to well-known and imminent dangers, and escape all responsibility if accident results, unless he be aware that the driver is reckless or unskillful, or unless the passenger actually aids in causing the accident.
On the controlling facts, no difference can be pointed out between the case at bar and two of those mentioned in the principal opinion (Crescent Township v. Anderson, 114 Pa. St. 643, 8 Atl. 379, and Dean v. Pennsylvania R. Co., 129 Pa. St. 514, 18 Atl. 718); and, applying the rules there laid down, the plaintiff here had no cause of action. Finally, I note what is said concerning these two cases in the later one of O’Toole v. Pittsburgh & L. E. R. Co., 158 Pa. St. 99, 27 Atl. 737, which was a case of collision between an electric and a steam car, and quoted in the main opinion, to the effect that in each of those cases the decision was put on the ground that the negligence of the driver was apparent, and he was to some extent under the direction or control of the party injured. If in either of the cases referred to in this remark there was anything said which suggested that the party injured had any control over the driver, or that he pretended to direct him in the slightest degree, or that such fact was patent in determining either case, I am unable to find it after a most careful reading of the opinions. And, especially with reference to the Dean Case, this can also be said of the assertion that both of the decisions were, in part, put on the ground that the driver’s negligence was apparent to the passenger. As I read the Pennsylvania cases, they were decided against the parties injured solely and expressly upon the ground that the plaintiffs, riding by invitation, or gratuitously, had contributed to their own injuries by failing to exercise ordinary care and prudence when approaching a well-known place of danger; and this without the slightest regard to the presence of the elements mentioned in the O’Toole Case, or reference to such elements.