While I am of the opinion that the trial judge was justified in finding that the deceased was run over while lying on the track either asleep or intoxicated to the point of insensibility, yet I concur in the opinion in this case wherein it is held that the nature of the locality where the accident occurred is not such as to bring the case within the third class of cases mentioned in the Miller v. Baldwin case. In my opinion, this case comes within the second class of cases mentioned in the Miller case, and I further agree with the statement in the opinion that the Miller case was a border line case on this point.
In fact, the only difference of opinion on the part of the members of this court in the Miller case was whether or not the type of country where the accident occurred was such as to bring that case within the third class of cases instead of the second class. The organ of the court in that case and the organ of the court in the present case thought the type of country was such as to bring the case within the third class, while the other member of the court thought the case should come within the second class. *Page 399
In determining the type and nature of the country where an accident of this kind occurs and the degree of care required on the part of the operatives of the train in operating through such country is to be fixed, I think the density of population, the use of the track by pedestrians as a footpath and the number and kind of road crossings in the vicinity are important criteria to be considered as was done in the Miller case. Considering the facts in this case on the basis of these criteria, I agree with the conclusion reached on this point in the opinion now being handed down.