(dissenting) — I cannot agree to the conclusion reached by the majority. The facts are to the effect that the respondent was walking along a paved boulevard parallel with the street railway tracks. The portion of the street containing the double track railway was the ordinary graveled street, with ties and rails. There was a curb four inches high separating the paved roadway from the car tracks. The respondent was walking leisurely along the paved roadway a couple of feet distant from the curb and *192parallel with the railway tracks. He was possessed of all his senses. His hearing and eyesight were good. There was nothing upon the street to distract his attention. "While the place where he was injured was within the city limits, it was practically in the country. There was no traffic near. While he was thus walking, he came to “D” street, which was a paved crossing over the railway tracks. When he came to this crossing he started across the tracks. As he turned to his left and was about to step upon the tracks, the corner of the street car struck him upon the left shoulder and injured him.
I think the majority of the court will agree that, if the respondent had been traveling at right angles to the boulevard for the distance of one hundred and forty feet and came to the street car track and attempted to step upon the track immediately in front of the street car, he would have been guilty of such negligence as to preclude a recovery, because, coming for that distance at right angles to the street car track, he, of necessity, must have seen the street car approaching, even at an excessive rate of speed, and if he had walked upon the track in front of the car, he would have been guilty of the grossest negligence; but, because he was walking parallel with the track, had looked down the track when he first came upon the street and saw no car coming at a distance of fifteen hundred feet, and because he walked parallel with the street car track up to “D” street crossing, a distance of one hundred and forty feet, and then turned to his left to cross the track, and was struck by the car, the majority say that this made a question for the jury. If the respondent had been an instant later he would have walked into the side of the street car as it passed him. If he had been an instant earlier *193he would have stepped immediately in front of the moving car.
It seems that a man with all his senses, walking a distance of two or three feet from a street car track, and parallel with it, when a car is approaching so closely behind that the instant he attempts to step upon the track, and does not see the car or hear it, and is struck by the car, he is clearly guilty of negligence. It is conceded in this case that the respondent attempted to step upon the railway track immediately as the approaching car came to him. The car was certainly making some noise. The respondent was walking leisurely along beside the track and there was nothing to distract his attention. No other car was within sight and no other conveyance was upon the street, and he must, therefore, have heard the car coming behind him. He must also have made a slight turn to the left in order to change his course so as to cross the track. . A mere glance would have shown him that the car was upon him. Under these circumstances, the respondent, as a matter of law, was guilty of negligence which was the primary.cause of his injury, and therefore should not be permitted to recover. I therefore dissent.
Mackintosh, J.,. concurs with Mount, J.