Remmen

(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:

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 *622 the car coming from that direction was ahnost upon him, when he took the chances of crossing ahead of it — the witness saying:

(after stating the facts as above). [1] Error is assigned to the denial of the motion of the defendant for a directed verdict in its favor, which motión was based upon the grounds, *619 first, that there was no proof of the defendant’s negligence; and, second, that the plaintiff was guilty of contributory negligence. So far as the first ground of the motion is concerned, we find in the record ample evidence to go to the jury tending to show that the defendant was negligent. There was the testimony of two passengers upon the car which struck the plaintiff that at the time when the car was approaching the point where the plaintiff attempted to cross the track, a point well lighted up by an electric light near by, the motorman of the car which struck him was not looking ahead, but had turned and was looking into the car,1 and that he had continued so to look back into the car all the way from Sixty-Fourth street to the place of the accident, a distance of 650 feet. -Similar evidence was given by a witness who stood on the street opposite the point where the accident occurred.

[2,3] A more serious question is whether or not the plaintiff was in law guilty of contributory negligence.…