(dissenting).
In the first consideration of this ease by the court I consented to its affirmance with grave doubt as to the correctness of the court’s view at that time. A careful re-examination of the record convinces me that the court was in error. Under the facts of this case, as they appear to me, this court cannot affirm unless it is to say that in all cases of injury by the running of the train, no matter how the injury happens, there is liability on the part of a railroad company. The testimony in my .judgment utterly fails to show any negligent act on the part of the railroad company. Nothing that the company did or left undone could have prevented this injury.
Considering the cáse from any standpoint the testimony warrants, it shows a clear case of gross neglect on the part of the party injured to take ordinary precaution to provide for his own safety. His injury was the «direct result of his own negligence.
Section 1985 has no application to the case because the facts surrounding the injury are fully developed. The testimony offered by the railroad company shows that it was guilty of no negligences, and the testimony offered by the appellee clearly shows that the injured party was guilty of contributory negligence. I have no fault to find with the abstract law announced in the majority opinion, but it is my judgment that the facts make no case for the application of this principle.