(dissenting).
Very clear it is that the deceased knew well that trains might pass any time, and likely knew when this regular train was due, as he had been working at this spot two months. Very certain it is that he could have seen the train, if he had looked, and likely have heard it. And if the noise prevented hearing, that was still greater the demand to look out. .
And very probable that he stepped on the track when the train was close and visible- — a rash act. If he did not step on the track when train was close, then he committed the rash act of standing on the track not looldng or listening. In any view careless. It seems to me that the court excuses him from all measure of care and prudence, and leaves out of the case contributory negligence of the most signal character. It requires a train to whistle at every party of men repairing track, building bridges or doing other work. I thought that the law required of them care and watchfulness. In this ease the danger was ever present and obvious, easily avoided- — -the negligence of the deceased great.
I hold that to hold the company liable in such a case its negligence must be wanton, and of this there is no proof. It was lawfully using its track, and the deceased upon it.