(dissenting). I am unable to agree to the judgment in this case. In my opinion the plaintiff’s own testimony shows such contributory negligence on his part as to preclude a recovery by him. I do not think it can be properly said (as is done in the opinion) that the defendant company by its management of its cars gave the plaintiff to believe that a car could not be approaching from the direction the car that inflicted the injury actually did come (the south), nor that the plaintiff had any right to assume that no car would be coming from that direction. Omitting immaterial mattery his testimony is as follows:
“On the 7th. day of December, 1912, I left my home at about half past 1 o'clock and went downtown. I bad 65 cents In money and paid 5 cents for car fare; bought a glass of beer, and then I bought 50 cents’ worth of alcohol, and then another glass of beer, at about 5 o’clock p. m., with my last nickel. I then started to walk home, and was run down by a street car. * * About the time I crossed Sixty-First street I seen a light that seemed like it was swinging on to the left — striking to the left. I judged it to be on the Alki switch. They call it Sixty-Fifth street switch on Yakima avenue. I thought the, light was a car coming downtown, going in onto the switch. X was very close to the crossing, or on it, when I saw the light. I got a little further, and a car came along at a good speed and passed me going from town, the same direction I was going. I might have been almost in the center of that block. Not any more. Just a little after she passed me I yiras about in the center of the block. I heard a blast of the whistle, because I took notice of it. I thought that was a ear that was coming behind, a tripper, as I knew by the time of the night it was, and thought it was a signal to the car that swung in first onto the switch for her to stop and wait until that tripper came up. When I heard the whistle I was halfway between the fence and Sixty-First street. * * * I started to walk across the street to the left, as X could not go further on the sidewalk, and there was an orchard and the fence in front of me. As I started to cross the street I thought I heard something. I was satisfied that I heard a car coming from the direction of town, going south. At that time I was off the end of the sidewalk, out in the street. I kept on walking, and looked around to see if I could see the head light of the car. I thought I seen the headlight, and also other lights; but I tried to get my eyes trained on it, fastened upon the headlight of the street car, and I did not see anything so close to me that I thought there was any *621danger, and so I straightened up again and about that time I was on the street car track, and as I glanced ahead I saw a very short distance from me a street car, and X thought I could make it, and I tried to jump like this, and at the same time she struck me, and she rolled me over, and I landed on my arms underneath. T looked southward all the time I was walking on the sidewalk, and saw no street car up to the time I started to turn out across the street. There was a street light at the place I turned to go across, and a path at that point. * * * When I looked towards the north, thinking 1 heard a street car, I was between the sidewalk and the end of the fence; started off the sidewalk. I was walking across over to * * * aiming to get to iliac sidewalk over there on the other side. I do not remember anything further until two policemen picked me up in the car at the Interurban Depot. * * * It must be 4% miles from where I left Fifteenth street to the place where I was injured. It is a block from Sixty-First street to the fence. As I got to Sixty-First street I thought I saw a swinging light on the switch. I did not see any car, but the light must have been from the car. I did not see a car at any time coming from the south, until she was as close as you are to me. My view was obstructed by the orchard and the fence. Q. Did you, at any time from the time you went out back of that fence out into the street, look to see whether a car was coming from that direction, or not? A. No, sir; I looked the other way, as I thought that I heard a car coming up the other way. Q. Where were you when you looked for the car coming the other way? A. I was leaving the sidewalk to go out into the street. Q. You were leaving this cement sidewalk? A. The end of the cement sidewalk; yes, sir. Then 1 looked down towards Tacoma and thought I saw a headlight. I tried to be sure of it, and kept on walking, and then turned around up the other way, as I thought that car was not close enough to hurt me anyhow, and then I got my eye on this other car. Q. When did you hear the blast of the whistle? A. Probably one-half way between Sixty-First street and the fence. Q. Where did that come from? A. It sounded from the south, Alki switch. Q. You heard the blast of a whistle halfway between Sixty-First street and the fence? A. Just about. Q. Then you knew the car was coming? A. I thought the car was going to stay there on account of another car coming up. Q. You knew what the blast of the whistle of a street car means? A. I thought it meant to stop. Q. Did you ever hear a street car give a whistle when it was going to stop? A. For another car behind it. Q. Why did you look towards the city when you heard the whistle at Alki switch? A. I thought there was a tripper behind the one coming on south. I thought the car was coming and was going to stay there on account of another car coining up. T thought the whistle meant to stop. I looked towards the ciiv when T heard the whistle at Alki switch, because I thought there was a tripper behind the one coming on south. Q. You did not pay any attention at all io the whistle? A. I did. sir. Q. What did you do? A. I looked for the car coming. Q. Did you look in the opposite direction? A. I did, sir, because 1 thought this meant for the car coming from the opposite direction. Q. What kind of a whistle? A. Just one short blast. I think the edge of the fence is 12 feet from the street car track. Q. Where were you when you were hit by the street car? A. I must have been between the two tracks, and when the— I seen the car, and made a jump, and got just about to the east track there. When I first saw the street car that struck me, it was 10 feet away, and T was about the middle of the car track. I was struck right opposite this fence. The right side of my body was struck by the car. I could not say it was the side, or end, or what part of the car struck me. I did not know anything about the fender of the car. I did not see any headlight on the car. After I left Thirty-Eighth street it was raining a little drizzle.”
When the witness spoke of “the two tracks,” he probably meant the two rails, for it would seem from the record that there was but a single track at the place he crossed. But it distinctly appears from his testimony, as I understand it, that from the time he left the sidewalk and entered the street to cross the track he did not look south until *622the car coming from that direction was ahnost upon him, when he took the chances of crossing ahead of it — the witness saying:
“I did not see anything so close to me that I thought there was any danger, and so I straightened up again, and about that time I was on the street car track, and as I glanced ahead I saw a very' short distance from me a street ear, and I thought I could make it, and I tried to jump like this, and at the same time she struck me, and she rolled me over, and I landed on my arms underneath.”