TOMLINSON v. CHICAGO, M. & ST. P. RY. CO., 134 F. 233

HOOK, Circuit Judge, after stating the case as above, delivered the opinion of the court. The plaintiff relies upon the presumption that, in the absence of ■evidence upon the subject, the deceased exercised due care to preserve his safety. Texas, etc., Railway v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; Northern Pacific Railway v. Spike, 121 Fed. 44, 57 C. C. A. 384.

But this presumption cannot stand against positive and uncontradicted proof, such as was presented in this case; that, had he taken those precautions which the law required of him, he could plainly have seen the approach of the train in time to avoid the danger. Northern Pacific Railroad v. Freeman, 174 U. S. 379, 383, 19 Sup. Ct. 763, 43 L. Ed. 1014; Baltimore, etc., Railroad v. Landrigan, 191 U. S. 461, 474, 24 Sup. Ct. 137, 48 L. Ed. 262. The presumption of the exercise of due care is at variance with the physical facts.

The evidence was so clear as to warrant no other conclusion than that the deceased, by the use of his senses, could have learned of the approach of the train before he reached the crossing; and the necessary inference is that he either did not look, or, having looked, he endeavored to cross in front of it. He was therefore, as matter of law, guilty of contributory negligence. Garlich v. Railway, (C. C. A.) 131 Fed. 837; Chicago, etc., Ry. v. Andrews (C. C. A.) 130 Fed. 65; Chicago, etc., Ry. v. Rossow, 117 Fed. 491, 54 C. C. A. 313; Chicago, etc., Ry. v. Pounds, 82 Fed. 217, 27 C. C. A. 112; Pyle v.

Clark, 79 Fed. 744, 25 C. C. A. 190. The judgment is affirmed. " '