(concurring). I concur in the reversal of the judgment on the ground stated in the opinion of the court, and also because, in my view, the plaintiff was conclusively proved to have been guilty of contributory negligence. As I understand it, the evidence conclusively established these facts. The plaintiff stopped when he was from 10 to 25 feet south of the first track. His witness Kretek stood at the north end of the east abutment. He testified that the steam and smoke were insufficient to obscure their vision of the oncoming engines and train, and there is no substantial evidence to the contrary, and that he saw the engines coming from the west on the third track and the flagman on the north side of that track. Kretek and the plaintiff saw the two engines coming from the west on the third track before the flagman signaled them to stop. The Illinois Central train was coming from the east on the second track with the headlight of the engine burning. The two engines coming from the west on the third track passed between the flagman and the Illinois Central train, and necessarily obstructed his vision of it for a time, while the only obstruction to the plaintiff’s view was the east abutment of the viaduct. Erom the point where he was sitting in his buggy he could not see easterly along the second track more than 80 feet, according to the most favorable testimony on his behalf, but at a point 5 feet south of the first track and 22 feet south of the second track he could see to the east along the latter track 375 feet. When he came out from behind the obstruction of the abutment to this point, the passenger engine with its blazing headlight was within 140 feet of the crossing, and he could not have failed to see it if he had looked, nor, if he had exercised reasonable prudence, to have appreciated and avoided danger from it, either by stopping his horse or by backing him to his former position. His horse was no nearer the second track when the coming train was visible to him than he was to the first track when he stopped him. The plaintiff, when he received the signal and direction of the flagman to cross, looked to the east, when he knew that a plain obstruction necessarily prevented his looking from being of any avail, but when he came from behind that obstruction to a point where looking would have been of use and where, if he had looked, he must have seen, he did not look, and his failure to look was one of the direct causes of his injury. The judge *174who heard the witnesses and tried this case below was of the opinion that the evidence conclusively proved the contributory negligence of the plaintiff, unless it was justified by the signal and order of the flagman, and he so instructed the jury. As he was not justified by that signal and order in failing to continue to exercise ordinary care for his safety, and as ordinary care at a railroad crossing where the view is obstructed at one point and clear at another requires the traveler to look along the track as soon as he passes the obstruction, or as soon as it is removed, the plaintiff’s failure to look after he could have seen and before he crossed was, in my opinion, contributory negligence fatal to his action.
One “does not relieve himself from the imputation of negligence by looking when he cannot see, and omitting to look again when he could see, and avoid danger.” Grand Trunk Ry. Co. v. Cobleigh, 24 C. C. A. 342, 78 Fed. 784, 787; Fletcher v. Fitchburg R. R. Co., 149 Mass. 127, 21 N. E. 302, 3 .L. R. A. 743; McCrory v. C., M. & St. P. Ry. Co. (C. C.) 31 Fed. 531; Abbett v. C., M. & St. P. Ry. Co., 30 Minn. 482, 16 N. W. 266, 267. “We cannot avoid the conclusion that the deceased did not look up or down the track as he should have done, after passing the wood office. If he had so looked, he certainly must have noticed the headlight of the approaching train. If he did not look, he must have been careless, and attempted to cross the track when he should not have done so,” said the Supreme Court of Michigan in Kwiotkowski v. Chicago & G. T. Ry. Co., 70 Mich. 551, 38 N. W. 463, 464; Gardner v. Detroit, L. & N. Ry. Co., 97 Mich. 240, 56 N. W. 603.