The opinion
Concurring Opinion by
Mr. Justice Simpson:
In my judgment the majority opinion satisfactorily establishes the fact that plaintiff did not produce sufficient evidence to carry the burden of proving defendant’s. negligence, and hence the judgment should be affirmed on this ground. But I wholly dissent from that opinion in so far as it finds, as a matter of law, that plaintiff’s husband was guilty of contributory - negligence. His death, and consequent inability to testify regarding his conduct at the time of the accident, raises a presumption that he exercised due care; and, presumptively, therefore, (1) he stopped, looked and listened before he proceeded to cross the tracks; (2) the place he stopped was a proper one; and (3) at that time he could neither see nor hear anything which would lead a prudent man to believe a train was approaching the crossing. Testimony that if the track was clear he could have seen the approaching train when it was 1,609 feet away, does not, as a matter of law, overcome the presumption, because (1) this is an affirmative defense, the burden of proving it being on defendant; and (2) the only evidence to that effect being oral, and produced by defendant, was for the jury’s consideration.