(dissenting).
I doubt that there is sufficient evidence in this record to support a finding that plaintiff’s intestates were guilty of contributory negligence. If not it was error to submit the issue. They being dead there can be no explanation from them as to why they failed to caution the driver, and the presumption obtains that they exercised due care for their own safety. But even were it conceded that the issue of contributory negligence could be submitted, it seems to me the learned trial court prejudicially affected plaintiff by this part of the charge upon which error is assigned: “Even passengers in an automobile approaching a railroad crossing cannot sit like dumb beasts and pay no attention to their own safety or the conditions and circumstances surrounding them.”