dissenting in part:
I concur in the reversal of the judgment in this case, but I do not agree with the third point of the syllabus nor that part of the opinion supporting the same.
The record discloses that the decedent looked in the direction-from which the train came while the view was obstructed by the fence built along the property of the American Car and Foundry Company. From that circumstance the majority opinion concludes that the decedent did not look ¿gain for the approaching train. I am not willing to agree that we can find that the decedent was contributorily negligent when there is no proof showing that he did not thereafter effectively look for the approaching train. Contributory negligence is an affirmative defense and must be established by evidence. Carrico v. W. Va. C. & P. R’y Co., 35 W. Va. 389, 14 S.E. 12; Berns v. Coal Co., 27 W. Va. 285; Johnson v. Railroad Co., 25 W. Va. 570, 577; Washington v. B. & O. R.R. Co., 17 W. Va. 190; Sheff et ux. v. The City of Huntington, 16 W. Va. 307. I think that the defense of contributory negligence is not established by proof. The facts shown herein are such that reasonable men may differ as to whether the *329defendant was guilty of contributory negligence. Before negligence, primary or contributory, exists as a matter of law, the facts must be such that reasonable men cannot differ. Wood v. Shrewsbury, 117 W. Va. 569, 573, 186 S.E. 294; Linville v. Railway Co., 115 W.Va. 610, 177 S.E. 538; Morrison v. Roush, 110 W.Va. 398, 158 S.E. 514.
In the absence of proof to the contrary, it is to be presumed that the decedent took the necessary measures for his own safety and to protect himself from fatal accident. See Barker v. Railroad Co., 51 W.Va. 423, 41 S.E. 148; Arrowood v. Railway Co., 127 W.Va. 310, 315, 32 S.E. 2d 634.
There is no proof that decedent did not look more than once, and effectively a second time, for the approaching train. The defense of contributory negligence is unsupported.
The facts being such that reasonable men may differ, and there being an absence of proof that the decedent did not effectively look for the approaching train, I would hold that he was not guilty of contributory negligence as a matter of law.